Al-Sabah v. Agbodjogbe et al

Filing 141

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 4/3/2019. (kw2s, Deputy Clerk) (c/m 4.3.19)

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IN THE UNITED STATES DISTRICTcC;q,lpq
FOR THE DISTRICT OF MARYLAND'~I\

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ALIA SALEM AL-SABAH,
Plaintiff,
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Civil Action No. ELH- 17-730

JEAN AGBODJOGBE, et aI.,
Defendants.
MEMORANDUM
On December 28, 2018, defendants' counsel, Jason M. St. John, Mark Simanowith, Jillian
K. Walton, and the law finn of Saul Ewing Arnstein & Lehr LLP (collectively, "defendants'
counsel"), moved for leave to withdraw as counsel for defendants Jean Agbodjogbe; Nandi Scott;
N&A Kitchen, LLC; N&A Kitchen II, LLC; 5722 York Road, LLC; 9 Jewels, LLC; and ASA
Foundation, Inc. ECF 132 (the "Motion"). That same day, the Court granted the Motion, provided,
however, that by January 9, 2019, any defendant could move to rescind this Order as improvidently
granted. ECF 134 (the "Order").
On January 7, 2019, Mr. Agbodjogbe so moved (ECF 136), asking the Court to rescind the
Order and "not allow [his] counsel to withdraw from this case."

ld. at 1. Mr. Agbodjogbe

acknowledges that he owes counsel $141,000, but he maintains that he has paid defense counsel
"hundreds of thousands" of dollars. Moreover, he claims that he is "entirely committed" to paying
his legal bills in full. ld.
Agbodjogbe also maintains that he will be unfairly burdened by the withdrawal of counsel.
A new attorney would require significant time to review the materials in this case and would charge
a significant retainer to account for those costs. ld. He also correctly asserts that, without legal
representation, the defendant entities will be in default. ld.

The Court ordered defendants' counsel to respond by January 22, 2019.

ECF 137. In

response (ECF 140), they maintain that they are entitled to withdraw from the case. According to
defendants' counsel, they entered an engagement agreement (ECF 140-1) (the "Agreement") with
defendants, who agreed "to make timely payment of fees and agreed to consent to the withdrawal
of Counsel from the representation in this action if the defendants did not pay their fees in a timely
manner."

Id. at 2-3. Further, they state that defendants "have failed to substantially fulfill their

obligations" under the Agreement because they "owe more than $140,000 to Counsel and have not
made a payment in over three months." Id. at 3.
The Federal Rules of Civil Procedure do not regulate appearance of counsel, which is
governed by local rules. In this Court, withdrawal of appearance by an attorney for an individual
is governed by Local Rule 101.2.a, which provides:
In the case of an individual, appearance of counsel may be withdrawn only
with leave of Court and if (I) appearance of other counsel has been entered, or (2)
withdrawing counsel files a certificate stating (a) the name and last known address
of the client, and (b) that a written notice has been mailed to or otherwise served
upon the client at least seven (7) days previously advising the client of counsel's
proposed withdrawal and notifying the client either to have new counsel enter an
appearance or to advise the Clerk that the client will be proceeding without counsel.
If the withdrawal of counsel's appearance is permitted, the Clerk shall notify the
party that the party will be deemed to be proceeding pro se unless and until new
counsel enters an appearance on behalf of the party.
Notably, Mr. Agbodjogbe does not contend that defendants' counsel failed to comply with
Local Rule 10 l.2.a.
Although there is scant case law interpreting the local rule, the cases that do exist
emphasize that withdrawal by an attorney is not a matter of right, but is subject to leave of court.
See AMoll v. Gordon, Civ. No. DKC-09-0372, 2010 WL 4183334, at *1 (D. Md. Oct. 25, 2010)
("The decision to grant or deny an attorney's motion to withdraw is committed to the discretion of
the district court."); Lenoir v. Pyles, 320 F. Supp. 2d 365 (D. Md. 2004) (denying local counsel's
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motion to withdraw, where out-of-state lead counsel, who had been admitted pro hac vice, had
been disbarred in his home jurisdiction, and stating: "Local Rule 10 1.2.a permits withdrawal of
counsel only with leave of Court.") (emphasis in original); Roberts v. County Comm 'rs of Cecil
County, 906 F. Supp. 304 (D. Md. 1995) (denying motion to withdraw by appointed pro bono
counsel representing indigent litigant in prisoner civil rights case).
In AbbOI/, Judge Chasanow opined that the Maryland Rules of Professional Conduct
("MRPC"), governing permissive withdrawal, "provide a benchmark for when withdrawal may
be permitted." A bbOI/, 2010 WL 4183334, at *1.1 The applicable provisions of the MRPC are
found in Rule 1.16(b):
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a
client if:
(I) withdrawal can be accomplished without material adverse effect on the
interests of the client;
(2) the client persists in a course of action involving the lawyer's services
that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon action or inaction that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer's services and has been given reasonable warning
that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on
the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
Comments 7 and 8 to Rule 1.16 are also relevant. They state:
[7] A lawyer may withdraw from representation in some circumstances. The
lawyer has the option to withdraw if it can be accomplished without material
adverse effect on the client's interests. Withdrawal is also justified if the client
persists in a course of action that the lawyer reasonably believes is criminal or
fraudulent, for a lawyer is not required to be associated with such conduct even if
the lawyer does not further it. Withdrawal is also permitted if the lawyer's
services were misused in the past even if that would materially prejudice the

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Pursuant to Local Rules 703 and 704, the MRPC apply to la"''Yers practicing in this

Court.

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client. The lawyer may also withdraw where the client insists on taking action or
inaction that the lawyer considers repugnant or with which the lawyer has a
fundamental disagreement.
[8] A lawyer may withdraw if the client refuses to abide by the terms of an
agreement relating to the representation, such as an agreement concerning fees or
court costs or an agreement limiting the objectives of the representation.
(Emphasis added.).
In Abbott, the Court evaluated a motion to withdraw that was opposed by the attorneys'
client.

The attorneys contended that their withdrawal was "warranted because Plaintiffs have

failed to pay for the services rendered and have made it clear they do not intend to pay in the
future." Abbott, 20 I0 WL 4183334, at *2. Citing cases, the Abbott Court said: "Courts routinely
permit attorney withdrawal where clients fail to pay fees in accordance with the terms of
engagement."

Id. Moreover, it stated: "Where a client's failure to pay fees is accompanied by

other manifestations of deterioration in the attorney-client relationship," which was evident on the
facts of Abbott, "the justification for withdrawal increases."

It!. at *3. Nevertheless, the Court

said: "In all cases, the court must still consider the potential prejudice to all parties involved and
the potential disruption to the administration of justice from attorney withdrawal.

If there is an

impending trial or other key proceeding, failure to pay fees may not justify withdrawal."

Id. In

the circumstances of Abbott, where there were "no impending deadlines" and it was "clear that the
attorney-client relationship hal d] broken down," the Court permitted withdrawal. Id.
Here, by agreement, defendants promised to make timely payments and consented to
counsel's withdrawal if counsel does not receive payment within 60 days of the invoice date. See
ECF 140-1 at 4. However, as defendants concede, they owe defense counsel over $140,000 and
are three months late on their payment. ECF 136 at 1. Therefore, they have "failed substantially"
to fulfill their obligations under the Agreement.

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Id. 19-30 1.16(b )(5).

Furthermore, because

defendants cannot payoff their debt at this time, additional representation would simply add to
that debt and "result in an unreasonable financial" burden on defendants' counsel under Rule 19301.16(b)(6).
Further, plaintiff is not unjustly prejudiced. Trial has not been set, and there are no
impending deadlines. To the extent that defendants might incur "start up" costs with a new lawyer,
such circumstances do not constitute prejudice because they result from the defendants' failure to
pay legal fees and are thus "plainly self-int1icted." See In re Franke, 207 Md. App. 679, 695, 55
A.3d 713, 723 (2012) (finding that any prejudice the client suffered from withdrawal of counsel
was "self-inflicted"

because the client failed to pay attorney fees); In re Cooper & Tuerk, [[P,

No. 607, 2018 WL 2714922, at *3,10 (Md. Ct. Spec. App. June 5, 2018) (finding no prejudice
where the client failed to pay attorney fees, and claimed that he did not have the time or money to
acquire another attorney, because those circumstances were self-inflicted).
"All parties other than individuals must be represented by counsel."

Id. Indeed, it "has

been the law for the better part of two centuries ... that a corporation may appear in the federal
courts only through licensed counsel."

Roland v. Cal. Men's Colony, 506 U.S. 194,201 (1993).

However, individuals, such as Mr. Agbodjogbe and Ms. Scott, can represent themselves in court.
See Local Rule 101.l(a).
Local Rule 101.2(b) provides that, "[i]n the event that within thirty (30) days of the filing
of the motion to withdraw, new counsel has not entered an appearance, the Court may take such
action, if any, that it deems appropriate, including granting the motion to withdraw and dismissing
any affirmative claim for relief asserted by the party and/or directing the party to show cause why
a default should not be entered on claims asserted against it." The Rule is couched in permissive
language.

In my view, it establishes a 30-day "safe harbor" period that follows the filing of a

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motion to withdraw, during which a corporate defendant may obtain new counsel.

The entity

defendants therefore must obtain counsel within this time frame to avoid default judgment being
entered against them.
For the foregoing reasons, the Court shall not rescind its Order (ECF 134) permitting
counsel to withdraw. However, I shall grant the entity defendants an additional 30 days to obtain
new counsel. Additionally, the parties shall submit a status report to the Court by May 10,2019.
An Order follows.

/s/
Ellen L. Hollander
United States District Judge

Date: April 3, 2019

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