Hawkins et al v. Summit County Ohio et al

Filing 110

Order granting the 106 Motion of intent and request for leave of Court to withdrawal as counsel for Plaintiff Jacquetta Hawkins by Elfvin & Besser and attorneys Bruce B. Elfvin, Barbara Kaye Besser, and Stuart G. Torch. See Order for details. Magistrate Judge Kathleen B. Burke on 4/12/2013. (P,G)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JACQUETTA HAWKINS, et al.,

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Plaintiffs,
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and
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UNITED STATES OF AMERICA,
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Plaintiff-Intervenor, )
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v.
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SUMMIT COUNTY, OHIO, et al.,
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Defendants.
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CASE NO. 5:11CV2753
JUDGE SARA LIOI
MAGISTRATE JUDGE
KATHLEEN B. BURKE

ORDER
(Resolving Doc. 106)

This matter is before the Court upon the motion of Elfvin & Besser and attorneys Bruce
B. Elfvin, Barbara Kaye Besser, and Stuart G. Torch (members of Elfvin & Besser) (collectively
“Movants”) to withdraw as counsel for Plaintiff Jacquetta Hawkins pursuant to Local Rule 83.9. 1
Doc. 106. For the reasons set forth below, the motion to withdraw is GRANTED.
Attorney withdrawal issues are committed to the Court’s discretion. See Gerber v.
Riordan, 2011 U.S. Dist. LEXIS 136283, *3 (N. D. Ohio 2011) (citing Brandon v. Blech, 560
F.3d 536, 537 (6th Cir. 2009)). When ruling on a motion to withdraw, the Court looks to the
rules governing attorneys’ professional conduct for guidance. See Brandon, 560 F.3d at 537-38.
Attorneys admitted to the bar for the State of Ohio are governed by the Ohio Rules of
Professional Conduct. See, e.g., Sims v. Charter One Bank, No. 3:10 CV 2941, 2011 WL
6934806 (N.D. Ohio Dec. 30, 2011). Rule 1.16 of the Ohio Rules of Professional Conduct sets
forth the rules an attorney must follow when terminating representation. Rule 1.16(b) provides
1

Local Rule 83.9 governs motions to withdraw as counsel and provides that “[t]he attorney of record may not
withdraw . . . without first providing written notice to the client and all other parties and obtaining leave of Court.”
Movants have complied with this requirement in this case.
1

that an attorney may withdraw from representation when any of the following apply:
(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;

(7)

the client gives informed consent to termination of the representation;

(8)

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

(9)

other good cause for withdrawal exists.

Ohio Prof. Cond. Rule 1.16(b).
In this case, Movants state in their motion that their continued representation of Hawkins
would pose a conflict of interest because Hawkins has declined to follow their advice and
Hawkins’ interests and those of the remaining 20 private Plaintiffs whom Movants represent are
no longer sufficiently aligned. Movants also assert that Hawkins insists on taking action which
Movants have a fundamental disagreement. Doc. 106, p. 2. Movants assert that they have taken
steps to avoid materially adverse consequences to Hawkins and that they have advised her to
seek the advice of separate counsel. The Court held telephone conferences on April 4, 2013 and
April 11, 2013 to discuss the motion to withdraw. 2 During these conferences, both Hawkins and
Movants acknowledged that they are in fundamental disagreement. Hawkins stated that she is
2

A court reporter was present for both of the telephone conferences.
2

attempting to obtain separate counsel. During the telephone conference on April 11, 2013, the
Court asked Hawkins if she had any objection to the motion to withdraw filed by Movants.
Hawkins stated that she had no objection to the motion to withdraw. The Court also asked
Hawkins if she understood that, if the motion to withdraw is granted, she would no longer be
represented by Movants and would not be represented by any attorney in this case unless she
obtains separate counsel. Hawkins stated that she understood that Movants would no longer be
her attorneys if they are granted leave to withdraw and that she would not be represented by
counsel unless she obtains new counsel. Based on this colloquy, the Court finds that Hawkins
has given her informed consent to termination of the representation and that Rule 1.16(b)(7) is
satisfied. Accordingly, the motion of Elfvin & Besser and attorneys Bruce B. Elfvin, Barbara
Kaye Besser, and Stuart G. Torch to withdraw as counsel for Plaintiff Jacquetta Hawkins is
GRANTED. Doc. 106.
IT IS SO ORDERED.

Dated: April 12, 2013
Kathleen B. Burke
United States Magistrate Judge

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