Summary
granting motion to withdraw where "[c]ounsel maintains withdrawal is necessitated by a breakdown in the attorney-client relationship due to disagreements regarding the best way to proceed and Plaintiff's unwillingness to follow the counsel's advice"
Summary of this case from Union Pac. R.R. v. Golden Gate Petroleum Co.Opinion
Civil No. 04cv1189-L(AJB).
October 11, 2007
ORDER GRANTING EX PARTE APPLICATION TO WITHDRAW AS COUNSEL OF RECORD
On September 7, 2007 counsel for Plaintiff filed an Ex Parte Application to Withdraw as Counsel of Record. Defendants did not oppose. Plaintiff was served with the application, but has not responded. For the reasons which follow, the application to withdraw is GRANTED.
An attorney representing a client before a tribunal may not withdraw except by leave of court. Darby v. City of Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992); Cal. R. Prof. Conduct 3-700(A)(1). This court requires counsel to "comply with the standards of professional conduct required of members of the State Bar of California, and decisions of any court applicable thereto." Civ. Loc. R. 83.4(b).
Counsel maintains withdrawal is necessitated by a breakdown in the attorney-client relationship due to disagreements regarding the best way to proceed and Plaintiff's unwillingness to follow the counsel's advice. The counsel argues this has rendered continued representation unreasonably difficult, as provided in California Rule of Professional Conduct 3-700(C)(1). Although this rule does not mandate withdrawal, it makes it permissive. However, an attorney may not withdraw until he or she "has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client. . . ." Cal. R. Prof. Conduct 3-100(A)(2).
Under the State Bar of California Rules of Professional Conduct, attorneys are bound to preserve client confidences when seeking withdrawal, if disclosing them would prejudice the client or violate the counsel's duty of confidentiality. See Cal. R. Prof. Conduct 3-700(A)(2). In light of these limitations, counsel often is not able to discuss in detail the reasons for withdrawal.
Prior to requesting withdrawal, counsel wrote to Plaintiff about his intention to do so, however, Plaintiff did not respond. Plaintiff also has not responded to the instant application. The counsel has also obtained extensions of pre-trial case management dates. ( See Order Granting the Parties' Joint Motion to Continue Pre-trial Conference and Modify Scheduling Order, filed Sept. 4, 2007.) Accordingly, the court finds counsel has taken reasonable steps to avoid prejudice to Plaintiff's prosecution of the case at least with respect to notice of intent to withdraw and relief from approaching court deadlines.
The court is cognizant that the counsel became involved in this case upon request from the San Diego Volunteer Lawyers Program, and it is doubtful whether Plaintiff, a state prisoner, will be able to secure further representation. Initially, Plaintiff required assistance in stating a cause of action under 42 U.S.C. § 1983 and seeking a preliminary injunction. The gravamen of his claim was that the California Department of Corrections and Rehabilitation ("CDCR") willfully failed to provide him with a suitable diet given his medical condition. Upon obtaining counsel, Plaintiff was able to state a claim, defeat a motion to dismiss and file a motion for preliminary injunction. Plaintiff's motion for preliminary injunction was denied as moot because the CDCR had transferred him to a correctional institution with hospital facilities and changed his diet, which improved his symptoms. ( See Order (1) Denying Plaintiff's Motion for Preliminary Injunction; and (2) Setting Status Conference, filed Jan. 10, 2006.) Plaintiff continues to claim frequent retaliation by CDCR personnel and inadequate medical treatment. Given the improvement in the conditions of Plaintiff's confinement and his symptoms, the court finds Plaintiff will not be unduly prejudiced if he has to proceed pro se. Numerous state prisoners represent themselves in section 1983 actions in this court.
Having reviewed the application and the supporting declaration of counsel, the court finds good cause exists to grant the application. For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1. Ex Parte Application to Withdraw as Counsel of Record is GRANTED. Plaintiff is hereby substituted in propria persona.
2. Clerk of Court shall provide a copy of this order to Plaintiff at the following address: Lindsay John Max (T-25849) c/o California Medical Facility, 1600 California Drive, P.O. Box 2500, Vacaville, CA 95696-2500. This address shall be used for service unless a notice of a different address is filed by Plaintiff.
IT IS SO ORDERED.