Heiney v. Attorney General for the State of Ohio

Filing 30

Memorandum Opinion and Order. Plaintiff's counsel's unopposed Motion to Withdraw as Attorney (ECF Docs. 24 , 29 ) is GRANTED, and Plaintiff's unopposed Motion for Leave for Pro Se Party to File Electronically (ECF Doc. 25 ) is DENIED. Signed by Magistrate Judge Amanda M. Knapp on 11/18/2021. (S,S)

Case: 3:21-cv-00501-DAP Doc #: 30 Filed: 11/18/21 1 of 5. PageID #: 3220

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAKE PAUL HEINEY,

CASE NO. 3:21-CV-00501

Plaintiff,

JUDGE DAN AARON POLSTER

vs.
DONNA MOORE, DIRECTOR, LUCAS
COUNTY ADULT PROBATION DEPT., et al.,

MAGISTRATE JUDGE AMANDA M. KNAPP
MEMORANDUM OPINION AND ORDER

Defendants.

This matter is before the Court on Plaintiff’s counsel’s unopposed Motion to Withdraw as
Attorney (ECF Docs. 24, 29), and Plaintiff’s unopposed Motion for Leave for Pro Se Party to
File Electronically (ECF Doc. 25). For the following reasons, the Motion to Withdraw is
GRANTED, and the Request to File Electronically is DENIED.
I.

Motion to Withdraw

On October 18, 2021, Plaintiff’s counsel filed a Motion to Withdraw as Attorney. (ECF
Doc. 24.) Pursuant to the Court’s Order (ECF Doc. 28), Plaintiff’s counsel filed a Supplemental
Motion to Withdraw on November 16, 2021, attaching affidavits from Plaintiff and attorney
Michael Stahl (“Attorney Stahl”) attesting that Plaintiff consents to his counsel’s withdrawal and
desires to proceed pro se. (ECF Doc. 29.) The Motion is unopposed.

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The basis for the Motion to Withdraw is an asserted conflict of interest that may impair
Attorney Stahl’s ability to continue to represent Plaintiff. (ECF Doc. 29-2, p. 1.) Specifically,
Attorney Stahl has identified an error he made in his representation of Plaintiff and determined
that Plaintiff may seek to excuse the procedural default of some of the claims in his petition by
arguing that Attorney Stahl’s error constituted ineffective assistance of counsel. (Id.) Attorney
Stahl concluded that Ohio Rule of Professional Conduct 1.18 required him to inform his client of
this error and the potential resulting conflict of interest. (Id., pp. 1-2.) After being informed of
the potential conflict, Plaintiff consented to the withdrawal and elected to proceed pro se. (Id., p.
2; ECF Doc. 29-1, p. 1.)
Under Local Rule 83.7(a), attorneys admitted to practice in this Court are bound by the
ethical rules in the Ohio Rules of Professional Conduct. Sec'y of Lab. v. Monroe Trades Corp.,
No. 1:17-CV-272, 2019 WL 11767598, at *2 (S.D. Ohio Apr. 22, 2019). Rule 1.16(b) of the
Ohio Rules of Professional Conduct provides that an attorney may withdraw from representing a
client in the following circumstances:
(1)
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 illegal or fraudulent;
(3)

the client has used the lawyer's services to perpetrate a crime or fraud;

(4)
the client insists upon taking action that the lawyer considers repugnant or
with which the lawyer has a fundamental disagreement;
(5)
the client fails substantially to fulfill an obligation, financial or otherwise,
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;

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(7)

the client gives informed consent to termination of the representation;

(8)

the lawyer sells the law practice in accordance with Rule 1.17;

(9)

other good cause for withdrawal exists.

Ohio R. Prof. Conduct 1.16(b) (2017).
After reviewing the motion and supplemental affidavits submitted by Plaintiff and his
counsel, the Court finds that the Motion to Withdraw is in compliance with Local Rule 83.9 and
Ohio Rules of Professional Conduct 1.16(b)(1) and (7). All parties have received written
notification of Attorney Stahl’s intent to withdraw, as required by Local Rule 83.9. (ECF Doc.
24, p. 2.) The supplemental affidavits submitted by Plaintiff (ECF Doc. 29-1) and Attorney
Stahl (ECF Doc. 29-2) satisfy the Court that Plaintiff has given informed consent to the
termination of the representation, as required by Ohio Rule of Professional Conduct 1.16(b)(7).
The remaining issue is whether withdrawal can be accomplished without material adverse
effect on Plaintiff’s interests. Ohio R. Prof. Conduct 1.16(b)(1). Here, Attorney Stahl has made
clear efforts to mitigate any harm to his client. He filed both a Traverse (ECF Doc. 22) and a
Motion to Expand the Record (ECF Doc. 26) on the same date as he filed the Motion to
Withdraw. This appears to have been an effort to minimize the delay to the proceedings.
Further, on November 11, 2021, an extension of time to respond to the Traverse was granted to
Defendants at their request. (ECF Docs. 27, 29.) The Court anticipates no additional delay
resulting from granting this Motion to Withdraw, as the additional time granted to Defendants is
sufficient to allow Plaintiff to seek alternative counsel, should he reconsider his determination to
proceed pro se. Finally, Plaintiff’s counsel attests that Plaintiff “is fully competent, has been an
engaged client throughout the representation, [and] has a high level of education as a surgeon.”

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(ECF Doc. 29-2, p. 1.) This Court accordingly has no reason to question Plaintiff’s ability to
move forward in this litigation in the manner of his choosing.
For all the foregoing reasons, Plaintiff’s Motion to Withdraw as Attorney as
supplemented (ECF Docs. 24, 29) is GRANTED.
II.

Request to File Electronically

Plaintiff’s counsel has also filed a motion described as a pro se request by Plaintiff for
permission to file documents electronically through the Northern District of Ohio’s electronic
filing system. (ECF Doc. 25.) Although articulated as a pro se request, the Motion was both
filed and signed by Plaintiff’s counsel. (Id.) The Motion is unopposed.
Local Rule 5.1(c) provides, in pertinent part:
[T]ypically only registered attorneys, as Officers of the Court, will be permitted to
file electronically. The Judicial Officer may, at his or her discretion, grant a pro se
litigant who demonstrates a willingness and capability to file documents
electronically permission to register to do so.
LR 5.1(c). Although this permission may be granted at the discretion of the Court, it is the
preferred policy of this District to limit electronic filing access to registered attorneys, unless
extenuating circumstances justify waiving this procedure. See United States District Court
Northern District of Ohio Electronic Filing Policies and Procedures Manual (February 10, 2020)
(“While parties and pro se litigants may register to receive “read only” electronic filing accounts
so that they may access documents in the system and receive electronic notice, typically only
registered attorneys, as Officers of the Court, will be permitted to file electronically.”); 1 see also
Johnson v. Working America, Inc., No. 1:12CV1505, 2012 WL 5948639, *5 (N.D. Ohio Nov. 1,
2012) (“It is this District’s preferred policy, however, to disallow pro se litigants access to

Available at https://www.ohnd.uscourts.gov/sites/ohnd/files/AppendixB%20Policies%20and%20Procedures%20
Manual-February%2010%202020.pdf (last visited Nov. 17, 2021).

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electronic filing unless extenuating circumstances exist to justify waiving these procedures”),
report and recommendation adopted, 2012 WL 5947607 (N.D. Ohio Nov. 28, 2012).
The record presently before the Court does not support a finding that extenuating
circumstances justify granting Plaintiff access to the electronic filing system as a pro se litigant.
First, it is noted that the relevant Motion was apparently prepared, signed, and filed by Plaintiff’s
counsel, leaving the Court with no evidence or other information to support a finding that
Plaintiff has “a willingness and capability to file documents electronically.” LR 5.1(c). Further,
there is no evidence or other information suggesting that Plaintiff is aware of or able to abide by
all Court rules, orders, policies, and procedures pertaining to the use of the Court’s electronic
filing system. The Court notes resources for pro se plaintiffs are available on the United States
District Court, Northern District of Ohio website. 2 This includes an application for a “read only”
account on CM/ECF, which allows litigants to view receive notifications and view electronic
docket sheets and documents, and does not require approval of the Court.
Accordingly, for all the foregoing reasons, Plaintiff’s Motion to File Electronically (ECF
Doc. 25) is DENIED.

Dated: November 18, 2021

s/ Amanda M. Knapp
AMANDA M. KNAPP
UNITED STATES MAGISTRATE JUDGE

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Available at https://www.ohnd.uscourts.gov/pro-se-information (last visited Nov. 17, 2021).

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