Hunter v. Sokoloff

          ORDER (1) GRANTING DURIE TANGRI LLP'S MOTION TO WITHDRAW AS COUNSEL AND (2) DENYING PLAINTIFF'S MOTIO TO DENY WITHDRAWAL OF COUNSEL RE: ECF NOS. 127, 130

          LAUREL BEELER UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff John Douglas Hunter, a prisoner currently incarcerated in San Quentin State Prison, brings this civil-rights complaint against defendant Mike Sokoloff, a nurse at the prison, alleging that Mr. Sokoloff subjected him to excessive force.^[1] Mr. Hunter is currently represented pro bono by the law firm Durie Tangri LLP.

         Durie Tangri now moves to withdraw as Mr. Hunter's counsel due to a breakdown in the attorney-client relationship.^[2] Mr. Sokoloff does not oppose Durie Tangri's withdrawal.^[3] Mr. Hunter opposes withdrawal and filed a separate motion asking the court to deny Durie Tangri's withdrawal unless the court appoints him new pro bono counsel in Durie Tangri's place.^[4]

         The court held a hearing on October 31, 2019, at which Mr. Hunter (appearing by telephone), Durie Tangri, and Mr. Sokoloff all appeared and participated. (The court conducted part of the hearing under seal solely with Mr. Hunter and Durie Tangri and part of the hearing with Mr. Sokoloff as well.) The court grants Durie Tangri's motion to withdraw and denies Mr. Hunter's motion to deny withdrawal.

         STATEMENT

         The court appointed Durie Tangri to represent Mr. Hunter on a pro bono basis on May 1, 2019.^[5] In the course of its representation of Mr. Hunter, Durie Tangri consulted with Mr. Hunter extensively and took multiple depositions and retained an expert at its own expense.^[6]

         Between July and September 2019, certain disputes arose between Mr. Hunter and Durie Tangri. Among other things, ongoing disputes arose regarding certain motions Mr. Hunter wanted Durie Tangri to file that Durie Tangri believed were not consistent with its obligations under Federal Rule of Civil Procedure 11 and California Rule of Professional Conduct 3.1.^[7] On September 6, 2019, Durie Tangri sent Mr. Hunter a letter informing him that - in light of Mr. Hunter's continuing instructions that Durie Tangri file motions that Durie Tangri did not believe it could file under the Federal Rules of Civil Procedure and the California Rules of Professional Conduct and the breakdown in the attorney-client relationship - Durie Tangri would seek leave to withdraw as his counsel.^[8] Durie Tangri provided Mr. Hunter with all of the case-related materials he requested.^[9]

         At the hearing, the court explained to Mr. Hunter that there are legal and ethical rules and obligations that attorneys have to comply with and that, if he is being represented by counsel, he has to be willing to work with his counsel and listen to their legal advice. Mr. Hunter acknowledged the court's explanation and thanked the court for providing it.

         ANALYSIS

         1. Governing Law

         Under 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).

         Withdrawal 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 ...