Heilman v. Silva et al

Filing 389

ORDER Granting 383 Motion to Withdraw as Attorney. Attorney David J Zugman terminated. Signed by Judge Janis L. Sammartino on 8/20/2018. (mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THOMAS JOHN HEILMAN,
CDCR #H-76785,

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ORDER GRANTING MOTION TO
WITHDRAW

Plaintiff,

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Case No.: 13-CV-2984 JLS (AGS)

v.
(ECF No. 383)

A. SILVA, et al.,
Defendants.

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Presently before the Court is Counsel David J. Zugman’s Motion to Withdraw as

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Counsel. (“MTN,” ECF No. 383.) After considering Mr. Zugman’s arguments and the

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law, the Court GRANTS the Motion to Withdraw as Counsel.

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“An attorney may not withdraw as counsel except by leave of court, and the decision

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to grant or deny counsel’s motion to withdraw is committed to the discretion of the trial

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court.” Beard v. Shuttermart of Cal., Inc., No. 07CV594WQH (NLS), 2008 WL 410694,

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at *2 (S.D. Cal. Feb. 13, 2008) (alterations, citations, and internal quotation marks

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omitted); see also Civ. L.R. 83.3(g)(3). “In ruling on a motion to withdraw as counsel,

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courts consider: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal

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may cause to other litigants; (3) the harm withdrawal might cause to the administration of

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justice; and (4) the degree to which withdrawal will delay the resolution of the case.” Leatt
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13-CV-2984 JLS (AGS)

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Corp. v. Innovative Safety Tech., LLC, No. 09-CV-1301-IEG (POR), 2010 WL 444708, at

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*1 (S.D. Cal. Feb. 2, 2010) (citing Beard, 2008 WL 410694, at *2).

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Pursuant to Civil Local Rule 83.4(b), each attorney “permitted to practice in this

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court shall be familiar with and comply with the standards of professional conduct required

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of members of the State Bar of California.” Civ. L.R. 83.4(b). In relevant part, California

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Rule of Professional Conduct 3-700 provides:

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(A) In General.
(1) If permission for termination of employment is required by
the rules of a tribunal, a member shall not withdraw from
employment in a proceeding before that tribunal without its
permission.
(2) A member shall not withdraw from employment until the
member has taken reasonable steps to avoid reasonably
foreseeable prejudice to the rights of the client, including giving
due notice to the client, allowing time for employment of other
counsel, complying with rule 3-700(D) [concerning the return of
client papers and property and the refund of any advance fees not
earned], and complying with applicable laws and rules.
(C) Permissive Withdrawal.
[A] member may not request permission to withdraw in matters
pending before a tribunal, and may not withdraw in other matters,
unless such request or such withdrawal is because:
...
(5) The client knowingly and freely assents to termination of the
employment; or
(6) The member believes in good faith, in a proceeding pending
before a tribunal, that the tribunal will find the existence of
other good cause for withdrawal.

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Pursuant to the Southern District of California’s Civil Local Rules, “[a] notice of motion

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to withdraw as attorney of record must be served on the adverse party and on the moving

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attorney’s client.” Civ. L.R. 83.3(f)(3)(a).

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Mr. Zugman seeks to withdraw as counsel for Plaintiff Thomas Heilman. (MTN 1.)

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He explains that Mr. Heilman has filed motions with the Court arguing that his counsel

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provided him with ineffective assistance and coerced him into signing a settlement
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13-CV-2984 JLS (AGS)

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agreement. (Id.) Mr. Zugman represents that he has served a notice of the motion to

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withdraw as required by Civil Local Rule 83.3(g)(3)(a). (Declaration of David Zugman,

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ECF No. 383-1, at 1–2.) The Court finds that Mr. Zugman has presented valid reasons to

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withdraw. This withdrawal may prejudice Mr. Heilman, but such concerns are tempered

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because he has agreed to settlement terms. (ECF No. 385.) Because the parties have agreed

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to settlement terms, there is minimal likelihood of harm to administration of justice and

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this withdrawal will not delay resolution of the case.

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Good cause appearing, the Court GRANTS Mr. Zugman’s Motion to Withdraw as

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Counsel, (ECF No. 383). The Clerk of Court SHALL update the docket to reflect the

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withdrawal of Mr. Zugman as counsel for Plaintiff in this case.
IT IS SO ORDERED.
Dated: August 20, 2018

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13-CV-2984 JLS (AGS)