Graves, et al v. Arpaio, et al

Filing 2322

ORDER that the Motion of Osborn Maledon, P.A. to Withdraw as Counsel of Record for Plaintiffs (Doc. 2321 ) is denied. See order for complete details. Signed by Judge Neil V. Wake on 7/23/15. (NKS)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Fred Graves, Isaac Popoca, on their own
behalf and on behalf of a class of all pretrial
detainees in the Maricopa County Jails,

No. CV-77-00479-PHX-NVW
ORDER

Plaintiffs,

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v.

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Joseph Arpaio, Sheriff of Maricopa County;
Andrew Kunasek, Mary Rose Wilcox,
Denny Barney, Steve Chucri, and Clint L.
Hickman, Maricopa County Supervisors,

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Defendants.

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Before the Court is the Motion of Osborn Maledon, P.A. to Withdraw as Counsel
of Record for Plaintiffs (Doc. 2321).

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The Motion states, “Osborn Maledon intends, by withdrawing from this case, to

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complete the substitution of counsel that began when Stinson Leonard Street LLP

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(‘Stinson Leonard’) noticed its appearance on July 2, 2015 (Dkt. 2319) and further on

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July 7, 2015 (Dkt. 2320).” (Doc. 2321.) It also states, “Because of the unique nature of

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this case, counsel are unable to notify the clients of their motion to withdraw.” (Id.) The

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Motion is supported by current counsel Sharad H. Desai’s certification that members of

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the Plaintiff class have not been notified because it would be impracticable to do so, but

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Mr. Desai is satisfied “that the interests of all class members will be well served and in no

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way disadvantaged by Osborn Maledon’s withdrawal in light of the continued

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participation of other counsel for the Plaintiff class.” (Doc. 2321-1.)

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“No attorney shall be permitted to withdraw or be substituted as attorney of record

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in any pending action except by formal written order of the Court, supported by written

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application setting forth the reasons therefor together with the name, last known

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residence and last known telephone number of the client.” LRCiv 83.3(b). In other

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words, substitution of counsel is accomplished by seeking court approval for the

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substitution, not by filing a notice of appearance by new counsel followed by a motion to

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withdraw by current counsel. Moreover, an application for substitution must set forth

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reasons for the substitution. This Motion does not.

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Further, the Motion does not consider that class counsel must be appointed by the

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Court upon consideration of certain factors. In appointing class counsel, a court must

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consider, among other things, the work counsel has done in identifying or investigating

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potential claims in the action, counsel’s experience and knowledge, and “any other matter

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pertinent to counsel’s ability to fairly and adequately represent the interest of the class.”

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Fed. R. Civ. P. 23(g)(1).

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Appointment of Plaintiffs’ current counsel was given thorough consideration.

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After two years considering, and at least three status conferences discussing, whether

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Osborn Maledon needed to be appointed as class counsel to assist or replace then-class

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counsel Theodore C. Jarvi, Plaintiffs moved for appointment of Debra Hill of Osborn

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Maledon, P.A., and Margaret Winter of the ACLU National Prison Project as class

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counsel.

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regarding the qualifications of Ms. Hill and Ms. Winter pursuant to Rule 23(g)(1). On

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April 1, 2008, Judge Earl Carroll granted Plaintiffs’ motion and terminated representation

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by Mr. Jarvi, but Defendants’ time to respond to the motion for appointment had not

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expired. (Doc. 1221.) On April 8, 2008, Defendants moved for reconsideration of the

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appointment Order to permit them to file a response. (Doc. 1231.) Following transfer of

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the case to the undersigned judge on April 10, 2008, the Court considered Defendants’

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arguments opposing the appointment and reaffirmed the appointment Order on April 16,

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2008. (Doc. 1239.)

(Doc. 1212.)

The motion included declarations and detailed information

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For the next seven years, Osborn Maledon and the ACLU National Prison Project

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represented Plaintiffs through extensive evidentiary hearings and achievement of

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significant improvement in conditions in the Maricopa County Jail. The ACLU National

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Prison Project took the lead regarding conditions related to pretrial detainees’ medical

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and mental health care, and Osborn Maledon was primarily responsible for conditions

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related to housing, safety, sanitation, nutrition, recreation, and discipline. By May 2012,

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all of the nonmedical provisions of the court-ordered prospective relief were terminated.

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On September 30, 2014, the Court found that Defendants had not shown that

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certain constitutional violations related to medical and mental health care had been

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corrected, and it ordered Defendants to adopt specific policies and procedures, fully

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implement those policies and procedures, and collect data to show compliance. (Doc.

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2283.) By September 15, 2015, Defendants must file a report of the data collected and

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summarized in compliance with the Order. The Order anticipates that Defendants “will

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demonstrate that prospective relief no longer remains necessary to correct any current and

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ongoing violation of Plaintiffs’ constitutional rights, and Court-ordered relief may be

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terminated before the PLRA permits another motion to terminate.” (Doc. 2283 at 59-60.)

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Thus, it is very late in this case, and probably unnecessary, to substitute new

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counsel for Osborn Maledon. If Plaintiffs need representation in addition to that provided

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by the ACLU National Prison Project, it would be extremely inefficient to rely on new

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counsel rather than those who have represented these clients for more than seven years.

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Moreover, there is no apparent reason that Osborn Maledon cannot continue

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representation for a few more months.

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IT IS THEREFORE ORDERED that the Motion of Osborn Maledon, P.A. to
Withdraw as Counsel of Record for Plaintiffs (Doc. 2321) is denied.
Dated this 23rd day of July, 2015.

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Neil V. Wake
United States District Judge

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