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requiring compliance with the California Rules of Professional Conduct
Summary of this case from Davis v. Kaiser Found. Hosps.Opinion
No. C 08-4254 PJH.
February 24, 2009
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND SETTING ASIDE ENTRY OF DEFAULT
Before the court is Sedgwick, Detert, Moran Arnold LLP's ("Sedgwick") motion to withdraw as counsel of record in this matter for defendant Neil Luxenberg ("Luxenberg"). Also before the court is plaintiff j2 Communications, Inc. ("j2") and Sedgwick's stipulation to set aside entry of default as to Luxenberg. Neither defendants nor j2 oppose the motion to withdraw. The court finds these matters suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b), and therefore VACATES the hearing scheduled for February 25, 2009. For the reasons stated below, Sedgwick's motion to withdraw is GRANTED and the entry of default as to Luxenberg is set aside.
DISCUSSION
According to Civil Local Rule 11-5, "[c]ounsel may not withdraw from an action until relieved by order of Court after written notice has been given reasonably in advance to the client and to all other parties who have appeared in the case." Further, "[w]hen withdrawal by an attorney from an action is not accompanied by simultaneous appearance of substitute counsel or agreement of the party to appear pro se, leave to withdraw may be subject to the condition that papers may continue to be served on counsel for forwarding purposes, unless and until the client appears by other counsel or pro se." Civil L.R. 11-5(b). In this district, the conduct of counsel, including withdrawal of counsel, is governed by the standards of professional conduct required of members of the State Bar of California. See Elan Transdermal Limited v. Cygnus Therapeutic Systems, 809 F.Supp. 1383, 1387 (N.D. Cal. 1992). Under California Rule of Professional Conduct 3-700(C)(1)(d), an attorney may request permission to withdraw if the client's "conduct renders it unreasonably difficult for the [attorney] to carry out the employment effectively." An attorney may also request permission to withdraw if the client breaches an agreement or obligation to the member as to expenses or fees. California Rules of Professional Conduct Rule 3-700(C)(1)(f). The decision to grant or deny an attorney's motion to withdraw as counsel is committed to the sound discretion of the trial court.LaGrand v. Stewart, 133 F.3d 1253, 1269 (9th Cir. 1998).
In the present case, Sedgwick seeks to withdraw as counsel of record for Luxenberg on two grounds: (1) Luxenberg has become non-responsive to requests by counsel for information making it unreasonably difficult to continue the representation; and (2) Luxenberg has breached an agreement by failing to pay attorney's fees. In support of its motion, Sedgwick submitted the declaration of John Gherini ("Gherini"), an associate at Sedgwick. In his declaration, Gherini attests that Luxenberg retained the law firm of Thompson Coburn to represent him in this action, which then retained Sedgwick as local counsel. Gherini Decl. ¶¶ 3-4. Gherini further attests that starting in December 2008, Luxenberg commenced a pattern of failing to respond to correspondence from the law firm of Thompson Coburn, including several phone and e-mail messages. Id. ¶¶ 6-7. Gherini also attests that Luxenberg has failed to pay any bills for services rendered to date. Id. ¶ 7.
In a letter dated January 7, 2009, Sedgwick informed Luxenberg that the court, at the December 18, 2008 case management conference, had requested additional information from him pertaining to alternative dispute resolution and the use of a magistrate judge. Gherini Decl. ¶ 8, Exh. A. The letter also informed Luxenberg that if he did not contact Sedgwick by January 9, 2009, to discuss the payment of bills and the information requested by the court, Sedgwick would file a motion to withdraw as counsel on January 12, 2009. Id. No response was received. Id. ¶ 8. In a letter dated January 12, 2009, Sedgwick, again, informed Luxenberg of its intent to file a motion to withdraw if Luxenberg did not contact Sedgwick by January 16, 2009. Id. ¶ 9, Exh. B. The letter also informed Luxenberg that if the court granted the motion to withdraw, the case would continue and an adverse judgment could be entered against him if he did not appear on his own behalf or obtain new counsel. Id. The letter further informed Luxenberg that the court, as a condition of withdrawal, may require Sedgwick to accept service of documents pertaining to this case for forwarding purposes until he makes an appearance on his own behalf or obtains new counsel. Id. On January 12, 2009, Luxenberg's assistant responded to Sedgwick via e-mail, indicating that Luxenberg had received Sedgwick's letters and would call the next day. Gherini Decl. ¶ 10, Exh. C. Luxenberg, however, failed to respond, prompting Sedgwick to advise Luxenberg's assistant that the motion to withdraw would be filed on January 16, 2009. Gherini Decl. ¶ 11, Exh. D. No response was received. Gherini Decl. ¶ 11.
On January 16, 2009, Sedgwick filed a motion to withdraw as counsel for Luxenberg. On January 23, 2009, j2 moved for an entry of default as to Luxenberg, which was subsequently entered by the Clerk on January 28, 2009. On February 11, 2009, j2 and Sedgwick filed a stipulation entitled, "Stipulation of Non-Opposition to Motion to Withdraw and to Set Aside Default." It provides as follows: (1) j2 does not oppose the motion to withdraw; (2) Sedgwick agrees, if the motion to withdraw is granted, to accept service of papers on behalf of Luxenberg and forward them to his last known address, until such time as the case is resolved or Luxenberg appears by other counsel or pro se; (3) Sedgwick agrees to notify j2 of all last known contact information for Luxenberg; (4) following Sedgwick's withdrawal, j2 will make any service on both Luxenberg and Sedgwick until the case is resolved or Luxenberg appears by other counsel or pro se; and (5) j2 agrees to set aside the default as to Luxenberg without prejudice to j2's right to renew its request for default either on the date this court issues an order on the motion to withdraw or by March 31, 2009, whichever is earlier.
After reviewing the papers submitted by the parties and the reasons for withdrawal noted by Sedgwick, the court concludes that there is good cause to grant Sedgwick's motion to withdraw. Luxenberg's refusal to communicate with Sedgwick, despite Sedgwick's multiple attempts to contact him, makes it unreasonably difficult for Sedgwick to represent Luxenberg effectively. Moreover, according to Sedgwick, Luxenberg has failed to pay an unspecified amount of attorney's fees. The court further concludes that withdrawal will not prejudice justice or unduly delay resolution of this case. Sedgwick has provided Luxenberg sufficient written notice of its intent to withdraw. Sedgwick has also warned Luxenberg of the possible adverse consequences of its withdrawal and the actions Luxenberg needs to take in order to avoid such consequences.
CONCLUSION
Accordingly, it is hereby ORDERED that Sedgwick's motion to withdraw as counsel of record in this matter for Luxenberg is GRANTED. Because Sedgwick's motion to withdraw as counsel is not accompanied by a simultaneous appearance of substitute counsel or agreement by Luxenberg to appear pro se, Sedgwick shall continue to accept service of papers for forwarding purposes until Luxenberg appears by other counsel or pro se. It is further ORDERED that, pursuant to the stipulation entered into between j2 and Sedgwick, the default against Luxenberg entered on January 28, 2009 is hereby set aside without prejudice to j2's right to renew its request for default following the issuance of this order. On March 26, 2009, at 2:30 p.m., a case management conference will be held. Luxenberg shall appear in person or by counsel.