United States v. Shearer et al

Filing 128

ORDER signed by District Judge Dale A. Drozd on 09/15/2022 GRANTING 123 Motion to Withdraw as Attorney. The Clerk of the Court is DIRECTED to terminate attorneys Matthew Gilmartin and Shaun Cunningham as the counsel of record for defendant Diane Sheare. Defendant Diane Shearer is substituted in pro se in this case. (Rodriguez, E)

Case 2:12-cv-02334-DAD-DB Document 128 Filed 09/16/22 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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No. 2:12-cv-02334-DAD-DB

Plaintiff,
v.
L. RICHARD SHEARER, et al.,

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Defendant.

ORDER GRANTING THE MOTION TO
WITHDRAW AS COUNSEL FOR
DEFENDANT DIANE SHEARER
(Doc. No. 123)

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This matter is before the court on the unopposed motion to withdraw as defendant Diane

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Shearer’s counsel of record filed by attorneys Matthew Gilmartin and Shaun Cunningham on

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August 15, 2022. (Doc. No. 123.) Having reviewed the motion and the supporting affidavit by

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attorney Gilmartin, the court finds the pending motion suitable for decision on the papers.

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Accordingly, the court vacates the hearing on the pending motion scheduled for October 18,

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2022. For the reasons explained below, the court will grant the pending motion to withdraw as

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counsel.

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LEGAL STANDARD

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Withdrawal of counsel is governed by the Local Rules of this court, which provide:

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Unless otherwise provided herein, an attorney who has appeared
may not withdraw leaving the client in propria persona without
leave of court upon noticed motion and notice to the client and all
other parties who have appeared. The attorney shall provide an
affidavit stating the current or last known address or addresses of
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Case 2:12-cv-02334-DAD-DB Document 128 Filed 09/16/22 Page 2 of 4
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the client and the efforts made to notify the client of the motion to
withdraw.

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L.R. 182(d). Further, “[w]ithdrawal as attorney is governed by the Rules of Professional Conduct

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of the State Bar of California, and the attorney shall conform to the requirements of those Rules.”

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Id.

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Rule 1.16(a) of the California Rules of Professional Conduct provides several grounds

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upon which an attorney “shall withdraw from the representation of a client,” including if “the

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client discharges the lawyer.” Cal. R. Prof. Conduct 1.16(a)(4) (emphasis added).1 However,

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representation shall not be terminated until the attorney “has taken reasonable steps to avoid

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reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient

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notice to permit the client to retain other counsel.” Cal. R. Prof. Conduct 1.16(d).
ANALYSIS

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Here, attorneys Gilmartin and Cunningham move to withdraw as counsel for defendant

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Diane Shearer in this action, at defendant Diane Shearer’s direction, because defendant Shearer

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has discharged them as her lawyers. (Doc. No. 123.) In particular, defendant Shearer wrote to

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attorneys Gilmartin and Cunningham on July 22, 23, and 29, 2022 directing them to “promptly

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prepare a motion to withdraw as [her] counsel,” because she wants to proceed pro se with this

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case. (Doc. Nos. 123-1–123-4.) Attorneys Gilmartin and Cunningham filed the pending motion

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to withdraw on August 15, 2022, noting therein that they had provided defendant Shearer with

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copies of her entire case file, as well as a copy of Local Rule 183 pertaining to persons appearing

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in propria persona, and advised her of the approaching fact discovery deadline of November 14,

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In contrast, a withdrawal based on the grounds listed in Rule 1.16(b) of the California Rules of
Professional Conduct is not mandatory, and the decision to grant or deny an attorney’s motion to
withdraw is committed to the discretion of the trial court. “In ruling on a motion to withdraw as
counsel, courts consider: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal
may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice;
and (4) the degree to which withdrawal will delay the resolution of the case.” Beard v.
Shuttermart of Cal., Inc., No. 3:07-cv-00594-WQH-NLS, 2008 WL 410694, at *2 (S.D. Cal. Feb.
13, 2008); see also CE Res., Inc. v. Magellan Grp., LLC, No. 2:08-cv-02999-MCE-KJM, 2009
WL 3367489, at *2 (E.D. Cal. Oct. 14, 2009) (noting that “[u]ltimately, the court’s ruling must
involve a balancing of the equities”). Because the court determines that the attorneys’ withdrawal
in this case is mandatory, the court need not address these factors herein.
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2022. (Doc. No. 123 at 2.) In addition, in his affidavit, attorney Gilmartin provides defendant

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Diane Shearer’s last known address of 701 Pine Street, Mt. Shasta, California 96067; her

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telephone number of 530-926-6222; and her email address of [e-mail]. (Doc. No.

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123-4 at 1.)

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Accordingly, the court finds that attorneys Gilmartin and Cunningham have complied

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with the notice requirements in Local Rule 182(d). In addition, in light of defendant Shearer’s

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decision to discharge attorneys Gilmartin and Cunningham as her lawyers and to proceed pro se

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in this action, their withdrawal is mandatory under Rule of Professional Conduct 1.16(a)(4).

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Thus, the pending motion to withdrawal as counsel for defendant Diane Shearer will be granted.

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CONCLUSION

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For the reasons set forth above:

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1.

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The motion to withdraw as counsel for defendant Diane Shearer (Doc. No. 123) is
granted;

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2.

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The Clerk of the Court is directed to terminate attorneys Matthew Gilmartin and
Shaun Cunningham as the counsel of record for defendant Diane Shearer;

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3.

Attorneys Matthew Gilmartin and Shaun Cunningham shall comply with all

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obligations under Rule 1.16(e) of the California Rules of Professional Conduct

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regarding release of a client’s papers and property and return of unearned fees; and

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4.

Defendant Diane Shearer is substituted in pro se in this case;2

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5.

The Clerk of the Court is directed to enter the following contact information as

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defendant Diane Shearer’s address of record;

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Diane Shearer
701 Pine Street
Mt. Shasta, California 96067
Telephone: [phone]
Email: [e-mail]

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Because several of the other defendants in this action continue to be represented by counsel,
this case will not be reassigned to the assigned magistrate judge. See L.R. 302(c)(21) (providing
that the duties to be performed in civil matters by a magistrate judge include, “[i]n Sacramento,
all actions in which all the plaintiffs or defendants are proceeding in propria persona, including
dispositive and non-dispositive motions and matters) (emphasis added). Accordingly, this case
remains assigned to the undersigned.
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6.

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Defendant Diane Shearer is directed to comply with all deadlines and the rules of
the court; and

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The Clerk of the Court is directed to serve this order on defendant Diane Shearer

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by mail.

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IT IS SO ORDERED.

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Dated:

September 15, 2022
UNITED STATES DISTRICT JUDGE

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