Cisneros De Rios v. Commissioner of Social Security

Filing 17

ORDER GRANTING 15 Motion to Withdraw as Counsel signed by Magistrate Judge Gary S. Austin on 10/5/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OLIVIA REFUGIO CISNEROS DE RIOS,

16-cv-1775 GSA

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Plaintiff,

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ORDER GRANTING MOTION TO
WITHDRAW AS COUNSEL

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

(Doc. 15)

Defendant.

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INTRODUCTION

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On November 22, 2016, Plaintiff filed this action challenging the Commissioner of Social

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Security’s (“Commissioner”) denial of her Social Security benefits. (Doc. 1). The Commissioner

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lodged the administrative record on April 12, 2017. (Doc. 9). Plaintiff’s Opening Brief was

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due on August 18, 2017. (Doc. 14). On August 18, 2017, Monica Perales, Plaintiff’s counsel,
filed a Motion to Withdraw as Attorney advising the Court that she has been unable to reach

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Plaintiff since May 15, 2017, despite several efforts to contact her via by phone and via mail.

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(Doc. 15). On August 23, 2017, this Court advised Plaintiff that any opposition to the motion

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shall be filed no later than September 22, 2017, and that a failure to respond would result in the

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granting of the motion. (Doc. 16). Both the Motion to Withdraw as Counsel and this Court’s

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Order was served on Plaintiff at her last known address. (Doc. 15, pgs. 5-6). To date, neither
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Plaintiff, nor the Commissioner, has filed an Opposition to the motion.
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DISCUSSION
Local Rule 182(d) provides that an attorney who has appeared on behalf of a client may
not withdraw, leaving the client in propria persona, without leave of court. The rule further
states that “[w]ithdrawal of an attorney is governed by the Rules of Professional Conduct of the

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State Bar of California” (“CRPC”). The California Rules of Professional Conduct are interpreted

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according to California law. See Image Technical Services, Inc. v. Eastman Kodak Co., 820

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F.Supp. 1212, 1215 (N.D. Cal. 1993).

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Permissive withdrawal of an attorney, which is at issue here, is addressed by Rule 3700(C) of the California Rules of Professional Conduct. Rule 3-700(C) provides that an attorney
may request permission to withdraw if the client “renders it unreasonably difficult for the

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[attorney] to carry out the employment effectively.” CRPC, Rule 3-700(C)(1)(d). The decision to
grant or deny a motion to withdraw as counsel is committed to the sound discretion of the trial

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court. See United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); Washington v. Sherwin

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Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982); Rus, Millband & Smith v. Conkle &

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Olesten, 113 Cal.App.4th 656, 673 (2003); Estate of Falco, 188 Cal.App.3d 1004, 1014 (1987)

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("To protect the best interests of the client, a trial court should have broad discretion in allowing
attorneys to withdraw.”). However, withdrawal is only proper if the client's interest will not be

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unduly prejudiced or delayed. Ramirez v. Sturdevant, 21 Cal.App.4th 904, 915 (1994) (an
attorney may not withdraw “at a critical point and thereby prejudic[e] the client's case”); also see

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Cal. R. Prof. Conduct 3–700(A) (“a member shall not withdraw from employment until the

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member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the

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client”).

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Here, Plaintiff is no longer communicating with counsel, and Ms. Perales is no longer able
to effectively represent Plaintiff’s interests. Therefore, Ms. Perales has demonstrated good cause
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to withdraw as counsel. In order to avoid prejudice, counsel will be directed to forward the

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administrative record and all of the pleadings to Plaintiff. The Court will also extend the deadline

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for the filing of Plaintiff’s Opening Brief to allow Plaintiff additional time to prepare her case.

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ORDER
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The Motion to Withdraw as Counsel is GRANTED and Plaintiff is SUBSTITUTED in as

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counsel in pro se. Ms. Perales SHALL to provide Plaintiff with the complete administrative

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record and all pleadings on or before October 20, 2017. Plaintiff SHALL file her Opening Brief

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no later than November 24, 2017. Plaintiff is cautioned that she no longer has the assistance of an

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attorney. She may wish to seek further legal assistance. If Plaintiff does not retain another
attorney to represent her, she is responsible for complying with all Court rules and applicable

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laws, including filing her Opening Brief. Failure to do so, or failing to timely comply with any
order of this Court (including this order) will result in dismissal of the action.
As per Ms. Perales, Plaintiff’s last known address is 216 North East Fourth Street,

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Visalia, California 93291. Plaintiff’s telephone number is [phone]. The Clerk of the

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Court shall update Plaintiff’s address on the docket and serve a copy of this order on Plaintiff at

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the above address. Plaintiff shall contact the Court immediately if the address listed above is not
correct.

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IT IS SO ORDERED.
Dated:

October 5, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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