Rehburg v. Bob Hubbard Horse Transportation, Inc.

Filing 40

ORDER by Magistrate Judge Jerry H. Ritter denying 29 Motion to Withdraw as Attorney.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LISA M. REHBURG,
Plaintiff,
v.

NO. 1:18-CV-00531-MV-JHR

BOB HUBBARD HORSE TRANSPORTATION, INC.
Defendant.

ORDER DENYING MOTION FOR WITHDRAWAL OF COUNSEL
This matter comes before the Court upon a Motion for Withdrawal of Counsel [Doc. 29]
filed on December 21, 2018, by Plaintiff’s attorney Raul A. Carrillo, Jr. Defendant Bob Hubbard
Horse Transportation, Inc. (“BHHT”), filed a response in opposition [Doc. 30] on December 22,
2018, which it withdrew [Doc. 36] on January 7, 2019, indicating no further opposition to
Carrillo’s withdrawal as counsel. Plaintiff Lisa M. Rehburg herself filed Plaintiff’s Opposition to
the Carrillo Law Firm, P.C.’s Motion for Withdrawal as Counsel for Plaintiff [Doc. 34] on January
4, 2019, and a supplemental opposition [Doc. 39] on January 22, 2019.
As grounds for withdrawal, attorney Carrillo asserts only that “[a]n effective attorneyclient relationship no longer exists” between himself and his client Rehburg. [Doc. 29, p. 1].
Rehburg disagrees and says that she has been fully cooperative and communicative and is unaware
of any basis for concern. [Doc 34, p. 2]. Rehburg opposes Carrillo’s withdrawal because she fears
resulting material adverse effects upon her case, first because it is at a critical stage due to
scheduled depositions and outstanding discovery requests, [Doc. 34, pp. 1-2], and second because
she hired Carrillo’s law firm on a contingency basis and does not believe she can either find a new
firm on a contingency basis or afford a new firm at hourly rates. [Doc. 39, p. 1].

The issue then is whether the Court should allow an attorney to withdraw from a pending
case when the attorney asserts that the previous attorney-client relationship is destroyed but the
client disagrees and opposes the motion and asserts that withdrawal will materially adversely affect
her case due to outstanding discovery and scheduled depositions and an asserted inability to obtain
substitute counsel.
PROCEDURAL CLEAN-UP
There are two initial matters to address. First, BHHT initially opposed the motion to
withdraw but later withdrew its opposition. [Doc. 30; Doc. 36] By that time, however, Rehburg
had filed her own opposition, [Doc. 34], and so the motion will be treated as opposed in order to
resolve the dispute between attorney Carrillo and Plaintiff Rehburg.
Second, in her opposition to withdrawal, Rehburg alleges that Carrillo has violated New
Mexico Rule of Professional Conduct 16-116(B)(3) NMRA. That rule states that “a lawyer may
withdraw from representing a client if: … (3) the client has used the lawyer’s services to perpetrate
a crime or fraud.” Rule 16-116(B)(3). Rehburg’s reliance on the Rule appears mistaken for two
reasons. First, it is a rule authorizing, not prohibiting, withdrawal. Second, it only applies when a
client has used the lawyer to perpetrate a crime or fraud. Nothing in the record suggests that
Rehburg is admitting that she used Carrillo to perpetrate a crime or fraud and, even if she were, it
makes no sense to cite a rule allowing withdrawal as a reason to prevent it. The Court will disregard
the citation to Rule 16-116.
Rehburg’s procedural objections to the motion, see [Doc. 34, p. 2], are addressed next.

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PROCEDURAL REQUIREMENTS OF A MOTION TO WITHDRAW
The Local Rules of the United States District Court for the District of New Mexico
establish the proper procedure for an attorney’s motion to withdraw. For all motions, the movant
must determine and state “whether a motion is opposed, and a motion that omits recitation of a
good-faith request for concurrence may be summarily denied.” D.N.M.LR-Civ. 7.1(a). Carrillo
stated in his motion that he contacted BHHT about withdrawal and received no response. [Doc.
29, p. 1]. BHHT’s initial opposition and subsequent consent to withdrawal are now a matter of
record. [Doc. 30; Doc. 36]. Rehburg’s procedural objections do not rely upon BHHT’s position
and so it appears that her own reliance upon Rule 7.1(a) raises different issues which are discussed
next.
Local Rule 7.1(a) incorporates additional procedures stated in Local Rule 83.8 when a
motion seeks permission for an attorney to withdraw, except that those requirements do not apply
when a member of a law firm withdraws but another member of the firm remains counsel in the
case. See D.N.M.LR-Civ. 83.4(b). In this case, Carrillo seeks to withdraw the firm entirely from
the representation, [Doc. 29, [p. 1], and so the additional procedures are required. While technically
a violation of Local Rule 83.8 would also violate Local Rule 7.1(a) by incorporation, the substance
of Rehburg’s objections fall within Local Rule 83.8 and so are discussed further in that context.
When a motion is unopposed, and the client is a natural person, both the motion and any
proposed order must state that the attorney’s client consents to withdrawal, and either give notice
of appointment of substitute counsel or give notice that the client intends to appear pro se. See
D.N.M.LR-Civ. 83.8(a). When the motion to withdraw is contested, it must give notice “that
objections must be served and filed within fourteen (14) days from date of service of the motion

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and that failure to object within this time constitutes consent to grant the motion.” D.N.M.LR-Civ.
83.8(b).
REHBURG’S PROCEDURAL OBJECTIONS TO WITHDRAWAL
Rehburg raises three distinct procedural objections to Carrillo’s motion to withdraw: (1)
neither the motion nor any proposed order recites that Rehburg consents; (2) neither the motion
nor any proposed order recites that Rehburg intends to appear pro se, and; (3) the motion does not
give the required notice of the right to file objections and the consequence of failure to object.
[Doc. 34, p. 2].
The requirement to recite the client’s consent to the attorney’s withdrawal is specific to
unopposed motions. See D.N.M.LR-Civ. 83.8(a). When filed, this motion was not clearly
unopposed, and so the recitation of consent may not have been necessary. In any event, it appears
that the purpose of the requirement is to assure a Court inclined to grant an unopposed motion that
the client is aware of and prepared for the attorney’s withdrawal. In this case, three days before
BHHT withdrew its opposition to Carrillo’s withdrawal, see [Doc. 36], Rehburg filed her own
opposition [Doc. 34], which informed the Court that she did not consent and was not prepared to
be without counsel. Thus, although Carrillo did not comply with the requirement to state the
client’s consent, there is no risk that the Court will grant the motion under the mistaken belief that
Rehburg approves. Therefore, the Court will not deny the motion to withdraw on the basis that
Carrillo failed to include the required recitation of client consent.
The second cited requirement of Local Rule 83.8(a), that the motion and any proposed
order recite the client’s consent to appear pro se (in the absence of immediate substitution of
counsel), also applies only to unopposed motions, again for the apparent purpose of assuring the
Court that granting an unopposed motion will not leave an unsuspecting party without needed

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counsel. Because this motion was not unopposed when filed and cannot be treated as unopposed
now due to Rehburg’s objections, the recitation requirement does not apply and is not a basis for
the Court to deny the motion to withdraw.
Rehburg’s final procedural objection is that the motion does not give notice of the right to
object and the consequence of failure to object. See D.N.M.LR-Civ. 83.8(a). In contrast to the
previous objections, the requirement of notice of the right to object applies only to contested
motions, and therefore applies in this case. Id. The obvious purpose of the provision is to assure
that a party has a fair opportunity to be heard on any objections to the attorney’s withdrawal.
Carrillo did not provide the required notice. Rehburg, however, has suffered no harm from
Carrillo’s violation because she filed a timely objection which will be addressed by the Court on
its merits. Therefore, although Carrillo violated Local Rule 83.8(a) by omitting the required notice,
the Court will not deny the motion on that basis but instead will address the substantive objections
that were filed.
REHBURG’S SUBSTANTIVE OBJECTIONS TO WITHDRAWAL
Rehburg asserts that her interests will be “materially adversely” affected by Carrillo’s
“withdrawal at this critical stage in the litigation.” [Doc. 34, p. 2]. She particularly notes that there
are depositions scheduled and “other outstanding discovery pending.” [Id., p. 2]. The record also
reflects these pending motions: Rehburg’s Motion to Remand and in the Alternative, to Allow for
Limited Discovery [Doc. 11] filed on August 15, 2018, and fully briefed as of October 3, 2018.
[Doc. 21]; Plaintiff’s Motion for Leave to Amend Her Complaint [Doc. 23] filed October 9, 2018,
to which no response has been filed; Defendant’s Motion to Compel Plaintiff’s Expert Witness
Disclosures [Doc. 27] filed December 19, 2018, to which no response has been filed; and
Plaintiff’s Motion to Stay Case Pending Decision on Motion to Remand [Doc. 31] on January 4,

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2019. On January 9, 2019, the Court granted a stay pursuant to Plaintiff’s Unopposed Motion to
Stay Pending Assignment of New Counsel [Doc. 32], filed in anticipation of the Court granting the
instant motion.
In addition to her procedural concerns, Rehburg asserts that she will be harmed by
withdrawal because Carrillo’s firm was hired on a contingency-fee basis in August, 2017, [id., p.
1], and that she now is “unable to find competent counsel on a contingency-fee basis” and cannot
afford to hire new counsel “on an hourly basis.” [Doc. 39, p. 1]. Rehburg also rebuts Carrillo’s
assertion of a collapse of the attorney-client relationship, [Doc. 29, p. 1], with her assertions that
she wants Carrillo’s continued representation, [Doc. 34-1, p. 4], that she authorized a settlement
offer, [Doc. 34-1, p. 2], and that there have been no communication issues or other problems in
the attorney-client relationship, [id].
Carrillo has not filed a response to the objections. Therefore, the Court is left with a motion
that relies upon a conclusory allegation of a current lack of an “effective attorney-client
relationship,” [Doc. 29, p. 1], in contrast with the client’s rebuttal paired with her unanswered
assertions of specific harm that would result from withdrawal.
SUBSTANTIVE STANDARDS FOR ATTORNEY MOTIONS TO WITHDRAW
The Tenth Circuit Court of Appeals does not have clear precedent for substantive
consideration of an attorney’s motion to withdraw. An unpublished Tenth Circuit case cites to a
Seventh Circuit decision, Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1087 (7th
Cir.1982), for the following rule: “The grant or denial of an attorney’s motion to withdraw in a
civil case is a matter addressed to the discretion of the trial court and will be reversed on appeal
only when the trial court has abused its discretion.” Abell v. Babbitt, 176 F.3d 488 (10th Cir. 1999)
(unpublished table decision).

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The rule cited in Abell has been applied in cases in the District of New Mexico, including
a published decision of District Judge James Browning granting a motion by plaintiff’s attorney
over defendant’s objections. In Gamez v. Country Cottage Care & Rehab., 377 F.Supp.2d 1101
(D.N.M. 2005), Judge Browning cited a “substantial breakdown in communication and
confidence,” 377 F.Supp.2d at 1102, as well as plaintiff’s apparent support for her attorney’s
withdrawal, id., n. 1, as sufficient grounds to allow withdrawal.
District Judge Browning has relied upon Abell in three unpublished decisions as well:
Trustees of N.M. Pipe Trades Health & Welfare Trust Fund v. Superior Mechanical Contractors,
Inc., 2011 WL 13282122 (D.N.M. November 8, 2011) (slip op. at 3); Trujillo v. Board of Educ. of
Albuquerque Public Schools, 2006 WL 4079079 (D.N.M. May 10, 2006) (slip op. at 2), and;
McGuire-Pike v. Ameri-Ck, Inc., 2005 WL 3663692 (D.N.M. September 22, 2005) (slip op. at 3).
Although each case reinforces the use of the discretionary standard from the Seventh Circuit, each
is distinguishable on its facts from this case. Trustees and Trujillo both presented the anticipated
situation where one party opposes withdrawal of the other party’s attorney. In Trustees, where
movant complied with the procedural requirements of local rule 83.8(b) and (c), Judge Browning
granted the motion to withdraw on the grounds that communication between client and counsel
had broken down and counsel had no authority to proceed further. 2011 WL 13282122, slip op. at
3. In McGuire-Pike, where again the movant complied with required procedures, defense counsel
asserted that the defendant supported withdrawal because it anticipated bankruptcy and could no
longer afford to pay for movant’s services; Judge Browning granted withdrawal over the plaintiff’s
objection after finding that the grounds were reasonable, and the Court could mitigate the effects
of any resulting procedural delays. 2005 WL 3663692 (slip op. at 3). Trujillo is an example of
withdrawal by an attorney who left law firm but where the firm was willing to continue the

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representation; Judge Browning granted the departing attorney’s motion to withdraw. 2006 WL
4079079 (slip op. at 2).
An additional case from the District of New Mexico illustrates other factors to be
considered. In Leaton v. Navajo Refinery, 2011 WL 13262486 (D.N.M. February 24, 2011) (slip
op. at 1), U.S. Magistrate Judge Carmen Garza cited to Abell for the general discretionary standard
and to the New Mexico Rules of Professional Conduct and the ABA Model Rules for additional
guidance. Judge Garza noted that a client’s violation of a representation agreement is a typical
basis for permissive withdrawal, but she denied withdrawal upon such grounds where the attorney
cited only difficulty in arranging a meeting with the client and did not document that the client
was aware that withdrawal could be a consequence of failure to meet. Id.
Judge Garza in Leaton also discussed authority in the professional conduct rules to seek
withdrawal for “other good cause” including “antagonism between the lawyer and the client”. Id.
(quoting A.B.A. Model Rules of Prof’l Conduct R. 1.16) (other citations omitted). Withdrawal
grounded on personal difficulties in the attorney-client relationship, however, requires some
scrutiny where opposed:
Attorneys are normally expected to represent their clients until the completion of a
case. An attorney may only withdraw by leave of the court, and only upon a
showing of good cause. Matter of Wynn, 889 F.2d 644, 646 (5th Cir. 1989);
Streetman v. Lynaugh, 674 F.Supp. 229, 235 (E.D. Tex. 1987) (‘[A]n attorney who
has once agreed to represent a client should not be permitted to abandon his
responsibilities merely because he is unhappy with the nature of the relationship
with the client.’). Unless ‘there is a demonstrated conflict of interest or counsel and
defendant are so embroiled in an irreconcilable conflict that is so great that it
resulted in a total lack of communication preventing an adequate defense[,]’ courts
are typically given wide latitude to deny motions to withdraw. United States v.
Cole, 988 F.2d 681, 681 (7th Cir. 1993).
Leaton, 2011 WL 13262486, at *1-2.

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Judge Garza also described, as illustrated by Judge Browning’s decision in McGuire-Pike,
that the effect of attorney withdrawal upon case management should be evaluated:
[I]t is incumbent on the court to ensure that the prosecution of the lawsuit is not
unduly disrupted by the withdrawal of counsel. … Such a determination involves
consideration of several factors, including the extent to which the withdrawal will
disrupt or delay a case, and whether the withdrawal will prejudice opposing parties.
Leaton, 2011 WL 13262486, at *2 (citations omitted).
ANALYSIS OF ATTORNEY CARRILLO’S MOTION
The Court is not Persuaded That There is an Irremediable Breakdown of the AttorneyClient Relationship
Carrillo’s entire argument in support of withdrawal is his conclusion that “[a]n effective
attorney-client relationship no longer exists” with Rehburg. [Doc. 29, p. 1]. Rehburg not only states
her disagreement on that point but provides some factual support for her position that she has been
cooperative and communicative and, while she regrets loss of representation by the associate
attorney who previously handled her case but now has left the Carrillo firm, she anticipates
continued effective representation by the firm and Carrillo himself. [Doc. 34, pp. 1-2; Declaration
of Lisa M. Rehburg in Support of Plaintiff’s Opposition to Carrillo Law Firm, P.C.’s Motion for
Withdrawal as Counsel for Plaintiff [Doc. 34-1, including Ex. 1]. In the face of Rehburg’s
response, Carrillo’s conclusion does not appear tenable.
The Procedural Effect of Withdrawal Appears Minimal in Isolation.
Allowing withdrawal of established counsel necessarily imposes some disruption in the
pretrial process. In this case, that potential disruption is mitigated by a stay that is now in place
pending determination of this motion, and which would continue for up to another twenty days
after allowing Carrillo to withdraw. [Doc. 37]. The Court also has before it another motion to stay
[Doc. 31] which, if granted, would put pretrial procedures on hold pending a determination of the

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pending motion to remand the case to state court, [Doc. 11], which has been fully briefed.
Therefore, the risk of adverse effects due to a short-term lack of counsel appears minimal.
Rehburg May Be Unable to Obtain Substitute Counsel or Represent Herself Pro Se.
Rehburg presents a compelling argument that withdrawal of Carrillo may leave her without
counsel. Her agreement with the Carrillo firm is based upon a contingency, presumably an agreedupon share of any recovery in this case where she seeks damages from the defendant. [Doc. 34-1,
p. 1]. She asserts, without contradiction, that she is “unable to find competent counsel on a
contingency-fee basis considering the length of time the Carrillo Law Firm has been representing
Plaintiff and that the Carrillo Law Firm filed the motion just two weeks before numerous
depositions were scheduled.” [Doc. 39, p. 1]. While the current stay mitigates the concern about
pending depositions, it has not been shown that Rehburg now has the ability to engage new counsel
on a contingency basis. If so, she asserts (again without contradiction in the record) that she “does
not have the funds to employ a new law firm to represent her in this matter on an hourly basis.”
[Id.] Finally, she states that she “resides in California and it would be impossible for her to
competently represent herself in this case.” [Id.].
The Court is persuaded by the record that Rehburg’s concerns are legitimate and that
allowing Carrillo to withdraw may leave Rehburg without the ability to competently prosecute her
case.
CONCLUSION
The Court has discretion to grant or deny an attorney’s motion to withdraw depending upon
the particular circumstances of the case. In this case, where it has not been shown that the attorneyclient relationship cannot be salvaged, and where the impact of withdrawal upon the client may be

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severe, withdrawal is not supported. Therefore, attorney Carrillo’s Motion for Withdrawal of
Counsel [Doc. 29] should be and is denied.
IT IS SO ORDERED.

_______________________________________
THE HONORABLE JERRY H. RITTER
UNITED STATES MAGISTRATE JUDGE

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