United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE.
Pending
before the Court is the motion to withdraw as counsel of
record without client consent (Doc. 36) filed by
Plaintiffs' counsel, attorneys Jody L. Broaddus and Marc
J. Victor of the Attorneys For Freedom Law Firm (together,
“Counsel”).
Local
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 “professional
considerations require termination and mandate withdrawal as
counsel.” (Doc. 36 at 1.)
Plaintiffs
filed a response opposing withdrawal, stating that withdrawal
of their counsel at this juncture would “put[] a huge
financial burden” on them and “force [them] to
represent [them]selves in the matter when [they] have no
legal background or knowledge of how to navigate the legal
system.” (Doc. 38 at 1.) Plaintiffs further suggest
that Counsel has been pressuring them into settling and that
Counsel's attempt to withdraw is intended to punish them
for refusing to settle. (Id.)
In
their reply, Counsel “absolutely denies [their]
clients' characterization of the situation, ” but
they maintain that their “ongoing duty of
confidentiality under ER 1.6 prohibits elaborating.”
(Doc. 39 at 1.)
Ninth
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 the professional considerations listed in ER
1.16 will often satisfy it, so long as other factors
don't outweigh those considerations. 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.”).
Here,
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. Moreover, the Court
cannot weigh whether the reasons for withdrawal are
outweighed by the harm withdrawal might cause to Plaintiffs
or to the administration of justice without knowing those
reasons. 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 affidavit under seal, explaining the
reasons justifying withdrawal.
Counsel
telephoned the Court this afternoon requesting expedited
consideration of withdrawal in advance of the December 11,
2019 evidentiary hearing on Defendants' motion to enforce
settlement agreement (Doc. 24). While the Court cannot
promise to resolve the matter of withdrawal in advance of
that hearing, it will attempt to do so.
Accordingly,
IT IS ORDERED that by December 6,
2019, Counsel may file an ex parte
affidavit under seal, ...