McGrath v. Montedonico

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Deborah McGrath, No. CV-19-08201-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 Joseph Montedonico, et al., 13 Defendants. — 14 — 15 Pending before the Court is the motion to withdraw as counsel of record without 16 client consent (Doc. 24) filed by Plaintiffs’ counsel, Matthew Scott Martin and the Law 17 Office of Matthew Scott Martin, LLC (together, “Counsel”). 18 Local Rule 83.3(b) provides various procedural requirements that must be met when 19 an attorney withdraws from representation of a client (except for a change of counsel within 20 the same law office) and further provides that the application to withdraw must set forth 21 the reasons for the withdrawal. Here, the procedural requirements are met. As to the 22 reason(s) for the withdrawal, Counsel avers that a reason for withdrawal exists but cannot 23 be disclosed without violating attorney-client privilege. (Doc. 24 ¶ 2.) 24 Ninth Circuit law suggests a “justifiable cause” standard applies when, as here, the 25 client doesn’t affirmatively consent to the withdrawal request. Lovvorn v. Johnston, 118 26 F.2d 704, 706 (9th Cir. 1941) (“An attorney may not, in the absence of the client’s consent, 27 withdraw from a case without justifiable cause; and then only after proper notice to his 28 client, and on leave of the court.”). “Justifiable cause” is not a terribly demanding standard, 1 and the professional considerations listed in ER 1.16 will often satisfy it, so long as other 2 factors don’t outweigh those considerations. Gagan v. Monroe, 2013 WL 1339935 , *4 (D. 3 Ariz. 2013 ) (“Factors that a district court should consider when ruling upon a motion to 4 withdraw as counsel include: (1) the reasons why withdrawal is sought; (2) the prejudice 5 withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the 6 administration of justice; and (4) the degree to which withdrawal will delay the resolution 7 of the case.”); Bohnert v. Burke, 2010 WL 5067695 , *2 (D. Ariz. 2010) (“Any factors that 8 might support [counsel’s] motion to withdraw are outweighed by the Court’s responsibility 9 to manage its own case load and ensure [fairness] to all parties. . . . [T]he Court finds that 10 the interests of justice will be best served if [counsel] remains available to assist and try 11 this case as he agreed to do when he entered his notice of appearance in 2009.”). 12 Here, the Court is unable to determine how much Counsel’s reasons weigh in favor 13 of withdrawal because the Court has no idea what Counsel’s reasons are. The reasons 14 listed in ER 1.16 run the gamut from the client’s failure to timely pay his attorney to the 15 client’s persistent criminal or fraudulent acts. In short, some of the reasons are more 16 compelling than others. The Court cannot weigh whether the reasons for withdrawal are 17 outweighed by the harm withdrawal might cause to Plaintiff1 or to the administration of 18 justice without knowing those reasons. 19 The Court appreciates Counsel’s concerns regarding attorney-client privilege. The 20 attorney-client privilege is “the oldest of the privileges for confidential communications 21 known to the common law,” and its “central concern” is “to encourage full and frank 22 communication between attorneys and their clients and thereby promote broader public 23 interests in the observance of law and administration of justice.” United States v. Zolin, — 24 — 491 U.S. 554, 562 (1989) (internal citations omitted). The privilege ensures that such 25 communications will not be disclosed to the public or discoverable by opposing parties 26 unless the privilege is waived or certain exceptions apply. Id. at 562-63 ; Weil v. 27 Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18 , 24 (9th Cir. 1981). But when the — 28 — 1 Defendants do not oppose the withdrawal. (Doc. 24 ¶ 5.) 1 privilege is asserted, the communications must be disclosed to the Court, as this is the only 2 way for the Court to determine, as a preliminary matter, whether the privilege applies. See, 3 e.g., Zolin, 491 U.S. at 568-69 (“[D]isclosure of allegedly privileged materials to the 4 district court for purposes of determining the merits of a claim of privilege does not have 5 the legal effect of terminating the privilege. Indeed, [the Supreme Court] has approved the 6 practice of requiring parties who seek to avoid disclosure of documents to make the 7 documents available for in camera inspection, . . . and the practice is well established in 8 the federal courts.”) (citation omitted). 9 The Court cannot exercise its discretion to grant or deny a motion to withdraw 10 without knowing the reason(s) justifying withdrawal.2 United States v. Williams, 717 F.2d 11 473, 475 (9th Cir. 1983) (“A trial court’s decision to release counsel is an exercise of its 12 discretion”); Woodall v. Drake Hotel, Inc., 913 F.2d 447 , 449–50 (7th Cir. 1990) 13 (“[C]ounsel bore the burden of demonstrating that [the clients] had consented to the motion 14 . . . or that there was a valid and compelling reason for the court to allow the withdrawal 15 over objection. . . . Because class counsel never disclosed, and the court never compelled 16 counsel to disclose, the reason for withdrawal, the court abused its discretion by granting 17 the motion.”); Behr v. Drake Hotel, Inc., 1991 WL 33661 , *1 (N.D. Ill. 1991) 18 (“Class counsel have now come forward in writing with detailed reasons for withdrawal, 19 to which both [clients] have responded in writing. In order to preserve the attorney20 client privilege, class counsel and [the clients] have filed affidavits and exhibits 21 under seal for our review in camera. Having carefully reviewed all of the submissions we 22 find that valid and compelling reasons exist for granting withdrawal.”). 23 By requiring Counsel to submit an ex parte affidavit under seal3 in support of the 24 withdrawal motion and allowing Plaintiff the opportunity to respond (again, ex parte and — 25 — 2 The Court recognizes that the comments to ER 1.16 state that a non-specific avowal 26 “that professional considerations require termination of the representation ordinarily should be accepted as sufficient.” The Court respectfully disagrees. Such an assertion is 27 too vague to allow the Court to exercise its discretion in any meaningful way or to ensure that “justifiable cause” truly exists to support the withdrawal request. 28 3 For Plaintiff’s benefit: “ex parte” means Defendants can’t see it, and “under seal” means the public can’t see it. || under seal), the Court can gain the information it needs to appropriately balance the 2|| 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 5|| (D.D.C. 2016) (“Numerous courts have reviewed . . . affidavits under seal to ascertain the 6|| basis of the motion to withdraw without upsetting the attorney-client privilege.”); Team 7\| Obsolete Ltd. v. ALH.R.M.A. Ltd., 464 F.Supp.2d 164, 165-66 (E.D.N.Y. 2006) (“A review 8 || 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 10 || attorney-client relationship between a party and its counsel, and that this method is viewed 11 || favorably by the courts.”). 12 On the other hand, if Counsel can obtain Plaintiff's written consent, no affidavit will 13 || be necessary, as this Court generally grants motions to withdraw as counsel with client || consent, absent unusual circumstances not present here. 15 Accordingly, 16 IT IS ORDERED that by January 17, 2020, Counsel shall file one of the following: (1) Plaintiff's written consent to the withdrawal, (2) an ex parte affidavit under 18 || 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. 20 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. 23 Dated this 30th day of December, 2019. — 24 — 25 _ a7 United States District Judge — 28 — -4-