Levy v. County of Alpine, et al.

Filing 80

ORDER signed by District Judge Kimberly J. Mueller on 7/15/2016 DENYING 74 Motion to Withdraw as Attorney without prejudice to the submission of a proposed substitution of attorney if new counsel will be prepared to begin trial on 8/15/2016. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT E. LEVY,

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No. 2:13-cv-02643-KJM-CKD

Plaintiff,

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v.

ORDER

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COUNTY OF ALPINE, et al.,

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Defendants.

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On July 11, 2016, approximately one month before the confirmed trial date of

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August 15, 2016, defendant County of Alpine moved for an order allowing its counsel of record,

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Gayle K. Tonon, to withdraw from representation and continuing the trial date. ECF No. 74.

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Plaintiff Robert Levy does not oppose the motion. The court held a telephonic hearing on July

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15, 2016. Douglas Watts appeared for plaintiff and Gayle Tonon appeared for defendant. David

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Prentice, County Counsel, and Carolyn McElroy, County Administrative Officer, also appeared.

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At hearing, the court DENIED defendant’s motion for the reasons discussed below.

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I.

LEGAL STANDARD

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The local rules of this district require an attorney who would withdraw and leave

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his or her client without representation to obtain leave of the court upon a noticed motion. E.D.

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Cal. L.R. 182(d). To comply with Local Rule 182(d), the attorney must conform to the
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requirements of the California Rules of Professional Conduct. Id. California Rule of

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Professional Conduct 3-700 provides several grounds upon which an attorney may seek to

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withdraw, including where “[t]he client knowingly and freely assents to termination of the

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employment.” Cal. R. Prof. Conduct 3-700(C)(5).

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The decision to grant or deny a motion to withdraw is within the court’s discretion.

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McNally v. Eye Dog Found. for the Blind, Inc., No. 09-01184, 2011 WL 1087117, at *1 (E.D.

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Cal. Mar. 24, 2011) (citation omitted). District courts in this circuit have considered several

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factors when evaluating a motion to withdraw, including the reason for withdrawal, prejudice to

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the client, prejudice to the other litigants, harm to the administration of justice, and possible

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delay. See Deal v. Countrywide Home Loans, No. 09-01643, 2010 WL 3702459, at *2 (N.D. Cal.

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Sept. 15, 2010); CE Res., Inc. v. Magellan Group, LLC, No. 08-02999, 2009 WL 3367489, at *2

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(E.D. Cal. Oct. 14, 2009); Beard v. Shuttermart of Cal., Inc., No. 07-594, 2008 WL 410694, at *2

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(S.D. Cal. Feb. 13, 2008).

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II.

DISCUSSION

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Defendant’s brief in support of its motion provides the relevant rules and then
simply states:
In this instance the Defendant, COUNTY OF ALPINE, has advised
that they [sic] no longer wish attorney GAYLE K. TONON to
remain as Trial counsel and will be substituting in new counsel.
The Motion to Withdraw and vacate and/or continue the Trial date
of August 15, 2016, is based on the request of the Defendant.

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ECF No. 74-1 at 2. Although discharge by a client is a permissible basis for seeking withdrawal

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under the California Rules of Professional Conduct, see Cal. R. Prof. Conduct 3-700(C)(5), the

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court ultimately has discretion to grant or deny a motion to withdraw, see McNally, 2011 WL

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1087117, at *1. At hearing, the court reviewed the relevant factors with the parties and gave

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them an opportunity to respond. County Counsel noted that it has been difficult to procure new

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trial counsel willing to represent the County on the current schedule, but effectively conceded that

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the County could be ready to go to trial on the confirmed trial date of August 15, 2016 if

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necessary. The court finds the relevant factors weigh against granting the County’s motion,

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because the requested withdrawal and continuance would cause delay, would harm the
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administration of justice, and may prejudice plaintiff, while a denial of the request would not

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prejudice the County. The representation that defendant “wish[es]” to substitute in new counsel

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for trial is not a sufficient showing that withdrawal and a continuance are warranted at this stage.

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III.

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CONCLUSION
For the foregoing reasons, the court DENIES defendant’s motion without

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prejudice to the County submitting a proposed attorney substitution if new counsel will be

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prepared to begin trial on the confirmed trial date of August 15, 2016.

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IT IS SO ORDERED.
DATED: July 15, 2016.

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UNITED STATES DISTRICT JUDGE

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