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In Re Zicam Cold Remedy Marketing

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA


March 25, 2011

IN RE ZICAM COLD REMEDY MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION.

WO

ORDER

This document relates to:

Carla Henry v. Matrixx Initiatives, Inc., et al.

10-cv-2082-PHX-FJM.

The court has before it a motion from lawyers Charles S. Zimmerman, Timothy J. Becker, and Stacy K. Hauer to withdraw as counsel for plaintiff Carla Henry (doc. 1381). Plaintiff has not responded, and no trial date has been set.

Counsel explains that they "have a fundamental disagreement with respect to Plaintiff's claim and Plaintiff's Counsel cannot assist Plaintiff in proceeding with her claim." Motion to Withdraw, 1. Counsel have "made several phone calls in an attempt to communicate and resolve the fundamental disagreement with plaintiff" and sent her several letters notifying her of the status of her case. Id., 1--2; see LRCiv 83.3(b)(2)(A). Counsel then notified plaintiff that if an "agreement could not be reached," they would move to withdraw. No agreement was reached.

A lawyer may withdraw from representation if "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement." ER 1.16(b)(4). Counsel do not explain the nature of the "fundamental disagreement" with plaintiff, and we therefore cannot determine whether good cause exists 2 for withdrawal. A reasonable inference is that the disagreement is related to the settlement 3 offer that plaintiff apparently declined. The choice of whether to settle a matter is solely the 4 client's, and any related disagreement with counsel is not grounds for withdrawal. See ER 5 1.2(a) ("A lawyer shall abide by a client's decision whether to settle a matter."). 6 We also note that counsel has not indicated whether they served their client with this 7 motion, as required by LRCiv 83.3(b)(2). 8 Accordingly, we deny counsel's motion to withdraw. We do so without prejudice as 9 to counsel's right to renew their motion with further information and proof of service of the motion on plaintiff.

IT IS ORDERED DENYING the motion to withdraw as counsel for plaintiff Carla Henry (doc. 1381).

20110325

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