United States District Court, N.D. California, San Francisco Division
UNITED STATES OF AMERICA ex rel. MICHAEL MCNALL and KARYL MCNALL, Plaintiffs,
PACIFIC RETIREMENT SERVICES, INC., et al., Defendants.
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL RE: ECF
BEELER UNITED STATES MAGISTRATE JUDGE
case is a qui tam action brought by relators Michael McNall
and Karyl McNall on behalf of the United States against
defendants Pacific Retirement Services, Inc. and Rehab
Specialists I, LLC (d/b/a Consonus Rehab Services). In May
2017, the government filed a notice declined to intervene,
and the case was unsealed.
2017 and 2019, the parties entered into numerous stipulations
to extend the deadline for the defendants to respond to the
complaint. The parties said that one of the reasons
for extending the defendants' deadline was because there
was an underlying criminal proceeding that was going to go to
trial (that was repeatedly continued) that would impact the
defendants' responses to the complaint.
underlying proceeding was the criminal trial of relator
Michael McNall. In April 2016, after this case was filed
and while it remained under seal (i.e., before the government
declined to intervene), the McNalls' home in Oregon
exploded. In early 2017, Mr. McNall was charged with
arson related to that explosion. Following several
continuances, Mr. McNall was tried and convicted in February
2019. Mr. McNall has appealed his
Pitre, and McCarthy, LLP (“CPM”), counsel for the
McNalls, now moves to withdraw as counsel. Before the
outcome of Mr. McNall's criminal trial, CPM informed the
McNalls that it was not willing to litigate this case on
their behalf if Mr. McNall were convicted.When Mr.
McNall was convicted, CPM and the McNalls agreed that the
McNalls would find new counsel to substitute into the case if
they wished to proceed. CPM states that “material
changes to the circumstances of the McNalls' life have
resulted in a deteriorating attorney-client
relationship” and states that it has good cause to
withdraw as counsel.
defendants do not oppose CPM's motion to
withdraw. The government did not file an
opposition to CPM's motion to withdraw. Ms. McNall
opposes CPM's motion. Mr. McNall did not file an
opposition or a statement of non-opposition.
court held a hearing and finds that CPM has taken adequate
steps to avoid foreseeable harm caused by its withdrawal. The
court grants CPM's motion to withdraw for the reasons
advanced in its filings and discussed at the hearing.
Civil Local Rule 11-5(a), “[c]ounsel may not withdraw
from an action until relieved by order of Court after written
notice has been given reasonably in advance to the client and
to all other parties who have appeared in the case.”
The Local Rules further provide that if the client does not
consent to the withdrawal and no substitution of counsel is
filed, the motion to withdraw will be granted on the
condition that all papers from the court and from the
opposing party will be served on the current (and
withdrawing) counsel to forward to the client until the
client appears through new counsel or pro se (if the client
is not a corporate defendant). N.D. Cal. Civ. L.R. 11-5(b).
is governed by the California Rules of Professional Conduct.
See Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir.
2008) (applying California Rules of Professional Conduct to
attorney withdrawal); j2 Global Commc'ns, Inc. v.
Blue Jay, Inc., No. C 08-4254 PJH, 2009 WL 464768, at *1
(N.D. Cal. Feb. 24, 2009) (citing Elan Transdermal Ltd.
v. Cygnus Therapeutic Sys., 809 F.Supp. 1383, 1387 (N.D.
Cal. 1992)). California Rule of Professional Conduct 1.16
sets forth several grounds under which an attorney may
request permission to withdraw, including that:
(1) the client insists upon presenting a claim or defense in
litigation, or asserting a position or making a demand in a
non-litigation matter, that is not warranted under existing
law and cannot be supported by good faith argument for an
extension, modification, or reversal of existing law; (2) the
client either seeks to pursue a criminal or fraudulent course
of conduct or has used the lawyer's services to advance a
course of conduct that the lawyer reasonably believes was a
crime or fraud; (3) the client insists that the lawyer pursue
a course of conduct that is criminal or fraudulent; (4) the
client by other conduct renders it unreasonably difficult for
the lawyer to carry out the representation effectively; (5)
the client breaches a material term of an agreement with, or
obligation, to the lawyer relating to the representation, and
the lawyer has given the client a reasonable warning after
the breach that the lawyer will withdraw unless the client
fulfills the agreement or performs the obligation; (6) the
client knowingly and freely assents to termination of the
representation; (7) the inability to work with co-counsel
indicates that the best interests of the client likely will
be served by withdrawal; (8) the lawyer's mental or
physical condition renders it difficult for the lawyer to
carry out the representation effectively; (9) a continuation
of the representation is likely to result in a violation of
these rules or the State Bar Act; or (10) the lawyer believes
in good faith, in a proceeding pending before a tribunal,
that the tribunal will find the existence of other good cause
counsel can withdraw, counsel must comply with California
Rule of Professional Conduct 1.16(d), which states that
counsel must not withdraw from employment until counsel
“has taken reasonable steps to avoid reasonably
foreseeable prejudice to the rights of the client, such as
giving the client sufficient notice to permit the client to