United States District Court, D. Arizona
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE.
before the Court is the Application for Withdrawal of Counsel
Without Consent (Doc. 151) filed by Plaintiff's counsel,
attorneys Florin V. Ivan and Justin M. Clark and the law
firms Ivan & Associates, P.C. and Ivan and Kilmark, PLC
Rule 83.3(b) provides various procedural requirements that
must be met when an attorney withdraws from representation of
a client (except for a change of counsel within the same law
office) and further provides that the application to withdraw
must set forth the reasons for the withdrawal. Here, the
procedural requirements are met. As to the reason(s) for the
withdrawal, Counsel avers that “[t]he application is
made for one or more reasons enumerated in ER 1.16 the
specifics of which are protected by the attorney-client
privilege.” (Doc. 151 at 1.)
Circuit law suggests a “justifiable cause”
standard applies when, as here, the client doesn't
affirmatively consent to the withdrawal 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.”).
“Justifiable cause” is not a terribly demanding
standard, and it's true the reasons listed in ER 1.16
will often satisfy it, so long as other factors don't
outweigh the reason. Gagan v. Monroe, 2013 WL
1339935, *4 (D. Ariz. 2013) (“Factors that a district
court should consider when ruling upon a motion to withdraw
as counsel include: (1) the reasons why withdrawal is sought;
(2) the prejudice withdrawal may cause to other litigants;
(3) the harm withdrawal might cause to the administration of
justice; and (4) the degree to which withdrawal will delay
the resolution of the case.”); Bohnert v.
Burke, 2010 WL 5067695, *2 (D. Ariz. 2010) (“Any
factors that might support [counsel's] motion to withdraw
are outweighed by the Court's responsibility to manage
its own case load and ensure [fairness] to all parties. . . .
[T]he Court finds that the interests of justice will be best
served if [counsel] remains available to assist and try this
case as he agreed to do when he entered his notice of
appearance in 2009.”).
the Court is unable to determine how much Counsel's
reasons weigh in favor of withdrawal because the Court has no
idea what Counsel's reasons are. The reasons listed in ER
1.16 run the gamut from the client's failure to timely
pay his attorney to the client's persistent criminal or
fraudulent acts. In short, some of the reasons are more
compelling than others.
the withdrawal motion comes at a very sensitive juncture in
the case. The deadline for Plaintiff to show cause as to why
the Second Amended Complaint should not be dismissed as to
Vemma Vitamins and Tarak Mehta is June 17, 2019, which is
less than a week away. (Doc. 150.) This deadline has already
been extended once, at Plaintiff's request, and the Court
noted that no further extensions would be granted. (Docs.
149, 150.) If Plaintiff fails to meet this deadline, the
Court will dismiss Vemma Vitamins and Tarak Mehta-the only
two remaining Defendants in this action-and will direct the
clerk of court to enter judgment. The Court previously
ordered that the already-dismissed Defendants could not apply
for attorneys' fees until judgment is entered. (Doc.
the Court needs more from Counsel than a vague assertion that
its withdrawal motion is based on “one or more reasons
enumerated in ER 1.16.” (Doc. 151 at 1.) The Court
appreciates Counsel's concerns regarding attorney-client
privilege and confidentiality, but these concerns can be
addressed. Courts often require attorneys to provide ex
parte affidavits in support of withdrawal motions-this
technique ensures that the Court has all the information it
needs to appropriately balance the withdrawal factors while
still preserving the confidentiality of the attorney-client
relationship. See, e.g., Sabre Int'l
Security v. Torres Advanced Enterprise Solutions, LLC,
219 F.Supp.3d 155, 158-59 (D.D.C. 2016) (“Numerous
courts have reviewed . . . affidavits under seal to ascertain
the basis of the motion to withdraw without upsetting the
attorney-client privilege.”); Team Obsolete Ltd. v.
A.H.R.M.A. Ltd., 464 F.Supp.2d 164, 165-66 (E.D.N.Y.
2006) (“A review of the relevant case law demonstrates
that documents in support of motions to withdraw as counsel
are routinely filed under seal where necessary to preserve
the confidentiality of the attorney-client relationship
between a party and its counsel, and that this method is
viewed favorably by the courts.”). Thus, the Court will
permit Counsel to file an ex parte motion under
seal, explaining the reasons justifying withdrawal.
pending before the Court is the Application for Withdrawal of
Counsel Without Consent (Doc. 153) filed by the law firm J.
Clark Law Firm, PLLC and attorney Justin M. Clark. The
application states, “The firm of Ivan & Associates
filed a notice of substitution of counsel on or around
November 11, 2018, however J. Clark Law Firm, PLLC is still
reflected as one of the attorneys of record for John
Edwards.” (Doc. 153 at 1.).
M. Clark has been representing Plaintiff since (at the
latest) August 25, 2017, when he signed the First Amended
Complaint (Doc. 13) as “Justin M. Clark, Esq., J. Clark
Law Firm, PLLC, Attorney of Plaintiff, John Edwards.”
(Doc. 13 at 27.) The Second Amended Complaint was also signed
by Justin M. Clark of J. Clark Law Firm, PLLC. (Doc. 103 at
28.) On September 28, 2018, Plaintiff filed a motion signed
by Florin V. Ivan of Ivan & Associates as “Attorney
for Plaintiff” (Doc. 121 at 3), although no motion for
substitution had been filed, let alone granted. On October 4,
2018, Plaintiff filed his response to Vemma International
Holdings, Inc.'s motion to dismiss (Doc. 125) and his
response to Tom and Bethany Alkazin's motion to dismiss
(Doc. 126). The former was filed by Justin Clark of J. Clark
Law Firm and bore electronic signatures of both Clark and
Ivan as “Attorneys for Plaintiff.” (Doc. 125 at
15.) The latter was signed and filed by Florin V. Ivan of
Ivan & Associates as “Attorney for
Plaintiff.” (Doc. 126 at 6.) Finally, on November 11,
2018, Florin Ivan filed a “Notice of Substitution of
Counsel, Change of Firm, Change of Address, ” in which
he gave notice that “law firm FLORIN V. IVAN, P.C. dba
IVAN & ASSOCIATES (‘the Firm') through Florin
V. Ivan and Justin M. Clark hereby appears as attorney of
record for Plaintiff JOHN EDWARDS and substitutes for all
attorneys and law firms previously appearing on behalf of
Plaintiff, ” listing both Florin V. Ivan and Justin M.
Clark under Ivan & Associates letterhead, including the
email address JustinClark@ivanandassociates.com, and
signing the notice with an electronic signature for both
Florin V. Ivan and Justin M. Clark under the law firm heading
Ivan & Associates. (Doc. 133 at 1-2). Since that date,
Justin M. Clark has been listed as an attorney on
Plaintiff's filings (e.g., Doc. 136 at 2), and
at times has signed Plaintiff's filings (e.g.,
Doc. 141 at 3), all of which have been filed on Ivan &
this is procedurally improper, but it is clear to the Court
that Justin M. Clark joined the law firm Ivan &
Associates, and that since autumn 2018, Plaintiff has been
represented by two attorneys, Florin V. Ivan and Justin M.
Clark, both of whom are attorneys at Ivan & Associates.
Mr. Clark can only have one set of contact information
through the Court's electronic filing system, and Mr.
Clark has his firm association as J. Clark Law Firm, and his
address at 2 N. Central Avenue in Phoenix. The Court cannot
withdraw the law firm J Clark Law Firm PLLC while maintaining
Justin Clark as counsel of record. The Court will not at this
time grant leave for Justin M. Clark to withdraw as counsel
for Plaintiff, and because it is impossible to withdraw the
J. Clark Law Firm PLLC without withdrawing Justin Clark, the
Application for Withdrawal of Counsel Without Consent at Doc.
153 will be denied in its entirety.
IT IS ORDERED that Counsel's Application
for Withdrawal of Counsel Without Consent (Doc. 151) is
denied without prejudice.
IS FURTHER ORDERED that by June 17,
2019, Counsel may file an ex parte motion
under seal, explaining the reasons justifying withdrawal.
IS FURTHER ORDERED that if Plaintiff or Defendants
wish to oppose Counsel's withdrawal, they may file a
memorandum setting forth their reasons by June 27,
IS FURTHER ORDERED that the Application for
Withdrawal of Counsel Without Consent (Doc. 153) filed by the
law firm J. Clark Law Firm, ...