United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge.
Plaintiff's
attorneys have filed a pair of withdrawal motions (Docs. 49,
51). As explained below, the motions will be denied without
prejudice.
BACKGROUND
This
lawsuit was filed in April 2018. (Doc. 1.) In a nutshell,
Plaintiff is pursuing claims for malicious prosecution (both
under 42 U.S.C. § 1983 and under state law) following
his acquittal in a state-court prosecution for sexual
assault. (See generally Doc. 34.) Plaintiff contends
the charges arose because a member of the Glendale Police
Department filed false police reports, lied in a search
warrant affidavit and while testifying before a state grand
jury, and concealed exculpatory evidence. (Id.) From
the outset of the case, Plaintiff has been represented by two
different law firms: Wilenchik & Bartness PC (“the
Wilenchik Firm”) and Fowler St. Clair, PLLC (“the
Fowler Firm”). (Id. at 1.)
On
April 29, 2019, the parties brought a discovery dispute to
the Court's attention. (Doc. 44.) The dispute concerned
persistent failures by Plaintiff's attorneys to respond
to discovery requests and to verify and supplement
Plaintiff's disclosures. (Id.)
On May
1, 2019, following a hearing concerning the discovery
dispute, the Court issued a minute order requiring
Plaintiff's attorneys to provide the requested
verifications and supplementation and extending the deadlines
in the scheduling order only as to Defendants. (Doc. 48.)
This minute order also authorized Defendants to file a motion
for attorneys' fees but required the parties to meet and
confer beforehand. (Id.)
On May
8, 2019, one week after this minute order was issued, the
Wilenchik Firm filed a motion to withdraw as counsel. (Doc.
49.) The motion states that the “grounds” for the
withdrawal request are that “Plaintiff is presently
represented in this matter by co-counsel [the Fowler Firm]
and a grant of this Motion would not result in Plaintiff
being unrepresented.” (Doc. 49 at 2.)
Later
that day, the Fowler Firm filed its own motion to withdraw as
counsel. (Doc. 51.) This motion states that the Fowler Firm
“does not have the experience or resources to handle
litigation of this nature on its own” and agreed to
participate in the case only because it had the
“understanding and expectation that . . . [the
Wilenchik Firm would] act as lead counsel based on their
experience with § 1983 claims specifically, and federal
litigation more generally.” (Id. at 1-2.)
The
next day, Defendants filed a response to both motions. (Docs.
53, 54.) Defendants “take no position” concerning
the withdrawal requests but ask the Court to defer ruling on
the requests until after Defendants file (and the Court rules
upon) an attorneys' fee request that Defendants
purportedly planned to file “in the very near
future.” (Doc. 53 at 1.)
It has
now been 27 days since Defendants filed their response, but
no attorneys' fee motion has been filed. Plaintiff has
not responded to either motion to withdraw.
ANALYSIS
Both
withdrawal motions will be denied without prejudice. Although
Local Rule 83.3 only enacts certain procedural requirements
governing attorney withdrawal requests and doesn't
specify a substantive standard for evaluating such requests,
[1]
Ninth Circuit law suggests a “justifiable cause”
standard applies when, as here, the client doesn't
affirmatively consent to the request. Lovvorn v.
Johnston, 118 F.2d 704, 706 (9th Cir. 1941) (“An
attorney may not, in the absence of the client's consent,
withdraw from a case without justifiable cause; and then only
after proper notice to his client, and on leave of the
court.”); see also LRCiv 83.3(b) (except for
an in-office change of counsel, counsel seeking withdrawal
must file a written application “setting forth the
reasons therefor”).
“Justifiable
cause” is not a terribly demanding standard, but it
hasn't been satisfied here. The Wilenchik Firm's
motion doesn't identify any reason why it wishes to
withdraw-it simply provides that Plaintiff won't be
prejudiced by the withdrawal because the Fowler Firm will
still be around to handle the case. Lack of prejudice to the
client is a separate matter from the reasons justifying the
withdrawal. Moreover, only a few hours after this motion was
filed, the Fowler Firm filed its own withdrawal motion,
arguing that it doesn't have the experience and resources
to handle the case without the help of the Wilenchik Firm.
Assuming arguendo this might be a justifiable cause
for withdrawal, it is premised on the Court granting the
Wilenchik Firm's motion-which the Court will not do at
this juncture.
It is
entirely possible the Wilenchik Firm has other reasons for
seeking to withdraw from this case-reasons that would meet
the “justifiable cause” standard-that it was
hoping to avoid mentioning in the docket. See Ariz.
R. Prof. Conduct 1.16 (identifying various permissible
grounds for terminating representation). Although discretion
is often a virtue, here that discretion has deprived the
Court of any legitimate basis for granting its withdrawal
motion. And unless and until the Court authorizes the
Wilenchik Firm's withdrawal, the justification provided
in the Fowler Firm's withdrawal application is 12868203,
*1 (E.D. Wash. 2015) (“Pursuant to LR 83.2(d)(4), . . .
[an] attorney's motion for withdrawal must demonstrate
good cause and must be filed and served on the client and
opposing counsel.”); SEC v. Stratocomm Corp.,
2013 WL 3542621, *1 (N.D.N.Y. 2013) (“Withdrawal of
counsel in a civil case is governed by Local Rule 83.2(b)
which provides . . . [that an] attorney who has appeared may
withdraw only upon notice to the client and all parties to
the case and an order of the Court, upon a finding of good
cause, granting leave to withdraw.”); Hallmark
Capital Corp. v. Red Rose Collection, Inc., 1997 WL
661146, *2 ...