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. 24) filed by
Plaintiffs' counsel, Matthew Scott Martin and the Law
Office of Matthew Scott Martin, LLC (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 a reason for withdrawal exists
but cannot be disclosed without violating attorney-client
privilege. (Doc. 24 ¶ 2.)
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. 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 Court cannot weigh whether the
reasons for withdrawal are outweighed by the harm withdrawal
might cause to Plaintiff[1] or to the administration of justice
without knowing those reasons.
The
Court appreciates Counsel's concerns regarding
attorney-client privilege. The attorney-client privilege is
“the oldest of the privileges for confidential
communications known to the common law, ” and its
“central concern” is “to encourage full and
frank communication between attorneys and their clients and
thereby promote broader public interests in the observance of
law and administration of justice.” United States
v. Zolin, 491 U.S. 554, 562 (1989) (internal citations
omitted). The privilege ensures that such communications will
not be disclosed to the public or discoverable by opposing
parties unless the privilege is waived or certain exceptions
apply. Id. at 562-63; Weil v. Inv./Indicators,
Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir.
1981). But when the privilege is asserted, the communications
must be disclosed to the Court, as this is the only way for
the Court to determine, as a preliminary matter, whether the
privilege applies. See, e.g., Zolin, 491
U.S. at 568-69 (“[D]isclosure of allegedly privileged
materials to the district court for purposes of determining
the merits of a claim of privilege does not have the legal
effect of terminating the privilege. Indeed, [the Supreme
Court] has approved the practice of requiring parties who
seek to avoid disclosure of documents to make the documents
available for in camera inspection, . . . and the
practice is well established in the federal courts.”)
(citation omitted).
The
Court cannot exercise its discretion to grant or deny a
motion to withdraw without knowing the reason(s) justifying
withdrawal.[2] United States v. Williams, 717
F.2d 473, 475 (9th Cir. 1983) (“A trial court's
decision to release counsel is an exercise of its
discretion”); Woodall v. Drake Hotel, Inc.,
913 F.2d 447, 449-50 (7th Cir. 1990) (“[C]ounsel bore
the burden of demonstrating that [the clients] had consented
to the motion . . . or that there was a valid and compelling
reason for the court to allow the withdrawal over objection.
. . . Because class counsel never disclosed, and the court
never compelled counsel to disclose, the reason for
withdrawal, the court abused its discretion by granting the
motion.”); Behr v. Drake Hotel, Inc., 1991 WL
33661, *1 (N.D. Ill. 1991) (“Class counsel have now
come forward in writing with detailed reasons for withdrawal,
to which both [clients] have responded in writing. In order
to preserve the attorney-client privilege, class counsel and
[the clients] have filed affidavits and exhibits under seal
for our review in camera. Having carefully reviewed
all of the submissions we find that valid and compelling
reasons exist for granting withdrawal.”).
By
requiring Counsel to submit an ex parte affidavit
under seal[3] in support of the withdrawal motion and
allowing Plaintiff the opportunity to respond (again, ex
parte and under seal), the Court can gain the
information it needs to appropriately balance the withdrawal
factors while ensuring that no communications assertedly
protected by attorney-client privilege are disclosed to the
public or to Defendants. 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.”).
On the
other hand, if Counsel can obtain Plaintiff's written
consent, no affidavit will be necessary, as this Court
generally grants motions to withdraw as counsel with client
consent, absent unusual circumstances not present here.
Accordingly,
IT IS ORDERED that by January 17,
2020, Counsel shall file one of the following: (1)
Plaintiffs written consent to the withdrawal, (2) an ex
parte affidavit under seal, explaining the reasons
justifying withdrawal, together with proof of service of this
order and the affidavit on Plaintiff, or (3) a retraction of
the motion to withdraw.
IT
IS FURTHER ORDERED that if Counsel files and serves
on Plaintiff an ex parte affidavit under seal,
explaining the reasons justifying withdrawal, Plaintiff may
file an ex parte response under seal by
January 31, 2020.
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Notes:
[1] Defendants do not oppose the
withdrawal. (Doc. 24 ΒΆ ...