Plasse et al v. Ford

Filing 41

ORDER signed by District Judge Troy L. Nunley on 9/3/19 GRANTING 38 DEG's motion to withdraw as counsel; Attorney David A. Diepenbrock is terminated. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAURICE JOHN PLASSE, III et al,

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Plaintiffs,

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No. 2:17-cv-01136-TLN-EB

v.
LYNLEY FORD; et al.,

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ORDER GRANTING MOTION TO
WITHDRAW AS COUNSEL FOR LYNLEY
FORD

Defendants,

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This matter is before the Court on David Diepenbrock and Diepenbrock Elkin Gleason’s

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(collectively, “DEG”) motion to withdraw as counsel for Defendant Lynley Ford (“Defendant”).

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(ECF No. 38.) Attorney of record for Defendant, David A. Dieprenbrock (“Diepenbrock”),

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submitted a supplemental declaration in support of DEG’s motion to withdraw as counsel. (ECF

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No. 40.) No oppositions to this motion have been filed.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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The underlying Complaint against Defendant was filed on April 24, 2017, and removed to

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this Court on May 30, 2017. (ECF No. 1 ¶1.) Defendant engaged DEG to represent her in this

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case in May 2018, and the parties subsequently entered into a fee agreement. (ECF No. 38 at 3.)

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Shortly after, Defendant retained a consulting expert through DEG, and under the agreement with

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that expert, Defendant was solely responsible for payment of the expert’s fees. (ECF No. 38 at

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3.) DEG alleges Defendant has refused to pay a $1,500 balance owed to the expert. (ECF No. 28

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at 4.)

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When Defendant initially engaged DEG, the matter was stayed pending the parties’

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completion of a Voluntary Dispute Resolution Program session, which was ultimately held on

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October 10, 2018. (ECF No. 38 at 4.) DEG alleges that after the session, the already strained

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attorney-client relationship “completely broke down.” (ECF No. 38 at 4.)

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On October 29, 2018, DEG sent Defendant a letter by certified mail stating DEG’s intent

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to withdraw from its representation of Defendant. (ECF No. 38 at 4; ECF No. 38-2 at 2–3.) The

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letter advised Defendant to seek new counsel immediately, and if new counsel was not in place by

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November 15, 2018, DEG would file a motion to withdraw as counsel. (ECF No. 38-2 at 2–3.)

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On November 5, 2018, Defendant sent an email to Diepenbrock stating, “Please do not do

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any work on my behalf unless I specifically request it until my new attorney is in place which is

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imminent.” (ECF No. 38-3 at 2.) Defendant directed an individual named Larry Hawk to retrieve

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her files from DEG’s office on November 6, 2018. (ECF No. 38 at 4.) DEG alleges Defendant’s

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conduct since September 10, 2018, has breached DEG’s fee arrangement. (ECF No. 38 at 4.)

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DEG filed this motion on December 21, 2018. (ECF No. 38.) As of the filing of this

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motion, Defendant had not identified or appointed new counsel. Defendant has not formally

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objected to the termination of the attorney-client relationship, and she has not filed an opposition

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to this motion. No trial date has been set in this case.

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II.

STANDARD OF LAW

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

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her client without representation to obtain leave of the court upon a noticed motion. E.D. Cal.
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L.R. 182(d). Local Rule 182(d) also requires an attorney to provide notice to the client and all

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other parties who have appeared, and an affidavit stating the current or last known address of the

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client. Finally, to comply with Local Rule 182(d), the attorney must conform to the requirements

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of the California Rules of Professional Conduct. Id.

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California Rule of Professional Conduct 3-700 provides several grounds upon which an

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attorney may seek to withdraw, including where “[t]he client knowingly and freely assents to

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termination of the employment,” Cal. R. Prof. Conduct 3-700(C)(5), and where client’s conduct

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has “rendered[ed] it unreasonably difficult for the member to carry out the employment

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effectively.” Cal. R. Prof. Conduct 3-700(C)(1)(d).

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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. 09-01174, 2011 WL 1087117, at *1 (E.D.

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Cal. Mar. 24, 2011). District courts within this circuit have considered several factors when

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

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prejudice to the other litigants, harm to the administration of justice, and possible delay. See e.g.,

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Deal v. Countrywide Home Loans, No. 09-01643, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 15,

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2010); CE Res., Inc. v. Magellan Group, LLC, No. 08-02999, 2009 WL 3367489, at *2 (E.D. Cal.

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

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Feb. 13, 2008).

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III.

ANALYSIS

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DEG asks the Court to grant its request to withdraw as counsel due to a strained attorney-

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client relationship and the desires of both parties. (ECF No. 38 at 3.) DEG expresses serious

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concern over its ability to represent Defendant through trial in this case. (ECF No. 38 at 3.)

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Accordingly, good cause is shown for DEG to withdraw as counsel.

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The Court next must determine whether there is risk of prejudice to Defendant if the

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motion is granted. DEG provided Defendant with notice of its intent to withdraw as counsel.

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(ECF No. 38-2 at 2–3.) Defendant has also indicated in writing her intent to terminate her

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attorney-client relationship with DEG and hire a new attorney. (ECF No. 38-3 at 2.) Defendant

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has also taken possession of the case files from DEG’s possession. (ECF No. 38 at 4.) Counsel
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has provided complete contact information to Defendant and served advance written notice to

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Defendant. (ECF No. 38-2 at 2–3.) Defendant has not filed any written objection to this motion.

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The Court finds the risk of prejudice to Defendant is minimal.

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Accordingly, good cause is shown and DEG’s motion to withdraw as counsel for
Defendant is GRANTED.

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IV.

CONCLUSION

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For the reasons set forth above, DEG’s motion to withdraw as counsel is (ECF No. 38) is

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GRANTED.

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Dated: September 3, 2019

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Troy L. Nunley
United States District Judge

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