Brown v. Glendale, City of et al

Filing 64

ORDER: IT IS ORDERED that the Motion to Withdraw as Co-Counsel for Plaintiff by John D. Wilenchik, Dennis I. Wilenchik, Lawrence J. Felder, and the firm of Wilenchik & Bartness, P.C. (Doc. 63 ) is denied without prejudice [see attached Order for details]. Signed by Judge Dominic W Lanza on 7/1/19. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Antonio Brown,
Plaintiff,

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ORDER

v.

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No. CV-18-01267-PHX-DWL

City of Glendale, et al.,

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Defendants.

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On June 12, 2019, Defendants filed a motion for attorneys’ fees. (Doc. 60.) The

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motion appears to seek recovery not only against Plaintiff, but also against Plaintiff’s two

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law firms, Wilenchik & Bartness PC and Fowler St. Clair PLLC. On June 26, 2019, both

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firms filed oppositions to the motion. (Docs. 61, 62.) The next day, Wilenchik & Bartness

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filed a motion to withdraw as counsel. (Doc. 63.) This order addresses the pending motion

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to withdraw as counsel.

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Ninth Circuit law suggests a “justifiable cause” standard applies when, as here, the

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client doesn’t affirmatively consent to the withdrawal request. Lovvorn v. Johnston, 118

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F.2d 704, 706 (9th Cir. 1941) (“An attorney may not, in the absence of the client’s consent,

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withdraw from a case without justifiable cause; and then only after proper notice to his

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client, and on leave of the court.”). “Justifiable cause” is not a terribly demanding standard,

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and it’s true the reasons listed in ER 1.16 will often satisfy it, so long as other factors don’t

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outweigh the reason. Gagan v. Monroe, 2013 WL 1339935, *4 (D. Ariz. 2013) (“Factors

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that a district court should consider when ruling upon a motion to withdraw as counsel

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include: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause

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to other litigants; (3) the harm withdrawal might cause to the administration of justice; and

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(4) the degree to which withdrawal will delay the resolution of the case.”); Bohnert v.

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Burke, 2010 WL 5067695, *2 (D. Ariz. 2010) (“Any factors that might support [counsel’s]

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motion to withdraw are outweighed by the Court’s responsibility to manage its own case

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load and ensure [fairness] to all parties. . . . [T]he Court finds that the interests of justice

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will be best served if [counsel] remains available to assist and try this case as he agreed to

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do when he entered his notice of appearance in 2009.”).

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Wilenchik & Bartness’s motion to withdraw states that “justifiable cause” exists to

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withdraw (1) due to privileged reasons set forth in a separate ex parte affidavit, (2) because

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one attorney at the firm is undergoing cancer treatment, and (3) because its fee agreement

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with Plaintiff gives it the unilateral right to withdraw.

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Notably, the motion doesn’t acknowledge that it comes at a particularly sensitive

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juncture in the case—indeed, there is a pending motion for attorneys’ fees against

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Wilenchik & Bartness that is just about to become fully briefed. The Court concludes that

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“withdrawal at this time would be unfairly prejudicial to Plaintiff, who has not consented

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to counsel’s withdrawal, as well as unfairly prejudicial to Defendants and to the timely

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administration of justice.” Martin v. Weed Inc., 2019 WL 2100002, *2 (D. Ariz. 2019)

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(declining to authorize withdrawal less than a week before argument on dispositive

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motions); see also Reiffin v. Microsoft Corp., 2011 WL 2359059, *2-4 (N.D. Cal. 2011)

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(requiring attorneys to continue representation in connection with pending motion for

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attorneys’ fees).

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Furthermore, the proffered reasons for seeking to withdraw are not particularly

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strong. The fee agreement’s withdrawal clause is unpersuasive—having the contractual

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right to withdraw is different from providing reasons why withdrawal should be

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allowed. As for Mr. Wilenchik’s medical condition, although the Court is very

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sympathetic to his situation, it appears that other attorneys from Wilenchik & Bartness

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have been litigating this matter for some time. Finally, the Court has reviewed the ex parte

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affidavit and observes, as an initial matter, that it’s unclear whether the matters discussed

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therein are actually privileged. At any rate, the affidavit doesn’t suggest that Wilenchik &

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Bartness would be somehow forced to violate any ethical rules if required to keep litigating

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this case—it merely elaborates on why the firm would prefer to withdraw. Thus, although

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the affidavit provides some support for the withdrawal request, the reasons offered do not

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outweigh the other factors: prejudice to Defendants, harm to the administration of justice,

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possible prejudice to Plaintiff, and possible delay.

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The motion to withdraw will be denied without prejudice. Once the attorneys’ fee

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motion is resolved and the case reaches a less sensitive juncture, the request may be

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renewed.

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Accordingly,

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IT IS ORDERED that the Motion to Withdraw as Co-Counsel for Plaintiff by John

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D. Wilenchik, Dennis I. Wilenchik, Lawrence J. Felder, and the firm of Wilenchik &

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Bartness, P.C. (Doc. 63) is denied without prejudice.

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Dated this 1st day of July, 2019.

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