Miller v. Mohave, County of et al

Filing 80

ORDER GRANTING defendant's Motion to Enforce Settlement Agreement (doc. 70 ). It is further ORDERED DENYING plaintiff's counsels' Motion for Reconsideration (doc. 75 ). Pursuant to ER 1.16(c), counsel shall represent plaintiff thro ugh the entry of final judgment. Thereafter, counsel may move to withdraw again. See LRCiv 83.3(a). It is further ORDERED DISMISSING this action with prejudice, each side to bear its own attorneys' fees and costs. The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 1/30/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joe Miller,
Plaintiff,

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vs.

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Mohave County et al,
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Defendant.
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No. CV 11-08182-PCT-FJM
ORDER

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On January 17, 2013, we entered an order denying plaintiff’s counsel’s Motion to

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Withdraw. (Doc. 72). We now have before us defendant’s Motion to Enforce Settlement

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Agreement (doc. 70), plaintiff’s Response (doc. 78), and defendant’s Reply (doc. 79). We

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also have before us plaintiff’s counsels’ Motion for Reconsideration (doc. 75).

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We denied counsels’ Motion to Withdraw for failure to comply with LRCiv

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83.3(b)(3), which provides that no lawyer will be permitted to withdraw once a case is set

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for trial unless a substituting lawyer or the client represent that they will be prepared for trial.

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The Motion (doc. 67) contained no such certification. Nor did counsel show good cause.

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They referred generically to professional considerations, offered to file something ex parte

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or in camera, and failed to do so.

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Counsels’ Motion for Reconsideration boldly declares that our order “overlooks or

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misapprehends the ethical constraints” and is based on “manifest error.” Motion at 2 (doc.

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75). But counsels’ noisy effort to withdraw in the face of the Motion to Enforce Settlement

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Agreement speaks for itself. Counsel admit as much by alleging that our “ruling has the

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effect of making Counsel a witness with respect to the Motion to Enforce Settlement.”

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Motion at 3. Counsel assert that continued representation would cause them to violate ER

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1.16(a)(1), (b)(4), (b)(6), 3.1 and 3.3. This means that they believe representation would

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violate the Rules of Professional Conduct (1.16(a)(1)); the client insists upon taking

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repugnant action or action with which counsel fundamentally disagree ((b)(4)); the

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representation will be burdensome or made unreasonably difficult by the client ((b)(6));

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counsel could not assert a frivolous position (3.1); and counsel would have to be candid to

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the court (3.3). We need know nothing more to decide the Motion for Reconsideration and

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the Motion to Enforce the Settlement Agreement.

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Under ER 1.16(c), “[w]hen ordered to do so by a tribunal, a lawyer shall continue

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representation notwithstanding good cause for terminating the representation.” This is such

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a case. The undisputed documents attached to the Motion to Enforce Settlement show that

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there was indeed a settlement. A lawyer has the authority, apparent or otherwise, to settle

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a case on behalf of a client. If the client disputes that, his beef is with the lawyer, not his

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adversary. Our system of justice would not work if a lawyer’s word was not his and his

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client’s bond. There was offer, acceptance and consideration. The important terms are clear

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and specific. No money would change hands, the case would be dismissed with prejudice

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and each side would bear its own attorneys’ fees and costs.

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subject to a condition subsequent. The documentation was a formality and added non-

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essential terms. Indeed the parties filed a Notice of Settlement (doc. 68), as required by

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LRCiv 40.2(d). Once this document is filed the underlying claim is extinguished by the

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accord and no longer exists. A lawyer cannot file a Notice of Settlement unless there is a

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settlement. The court relies on the Notice. It is a misrepresentation to the tribunal to file a

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Notice of Settlement where there is no settlement. Thus the attempt to rescind it (doc. 69)

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is a nullity.

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This was not a settlement

On the uncontradicted evidence, there was a settlement here. Accordingly, it is
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ORDERED GRANTING defendant’s Motion to Enforce Settlement Agreement (doc. 70).

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It is further ORDERED DENYING plaintiff’s counsels’ Motion for Reconsideration (doc.

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75). Pursuant to ER 1.16(c), counsel shall represent plaintiff through the entry of final

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judgment. Thereafter, counsel may move to withdraw again. See LRCiv 83.3(a).

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It is further ORDERED DISMISSING this action with prejudice, each side to bear its own

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attorneys’ fees and costs. The clerk shall enter final judgment.

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DATED this 30th day of January, 2013.

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