Suarez v. Del Toro

• Court: District Court, S.D. California
• Decided: January 10, 2023
• Docket: 3:22-cv-00021
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA SUAREZ, Case No.: 22-CV-0021-GPC-BLM

12 Plaintiff, ORDER CONDITIONALLY 13 v. GRANTING AMENDED MOTION TO WITHDRAW AS COUNSEL 14 CARLOS DEL TORO, Secretary, U.S. EFFECTIVE THIRTY (30) DAYS Department of the Navy, 15 FROM ORDER Defendant. 16 [ECF No. 65] 17 18 Before the Court is a motion by Plaintiff Maria Suarez’s Counsel to withdraw as 19 counsel. ECF No. 65. For the reasons that follow, the Court hereby CONDITIONALLY 20 GRANTS the motion for leave to withdraw as counsel, effective thirty (30) days from the 21 date of this Order. 22 I. BACKGROUND 23 Counsel asserts that in December 2021 Suarez retained the law firm Tully Rinckey, 24 PLLC for the limited scope of opposing Defendant Carlos Del Toro’s motions to dismiss 25 and to transfer venue. ECF No. 65 at 2. Around April 22, 2022—after Suarez’s case was 26 transferred to this Court and dismissed with leave to amend, see ECF No. 28 (order granting 27 1 1 motion to transfer); ECF No. 37 (April 6, 2022 Order granting motion to dismiss)— 2 Counsel alleges Suarez again agreed to “extend[] her scope of representation with Tully 3 Rinckey, PLLC to only include drafting and submitting an amended complaint pursuant to 4 the April 6, 2022 Order,” ECF No. 65 at 2. Around October 18, after Suarez received 5 notification from Counsel that the scope of representation was complete, Suarez again 6 purportedly “agreed to additional representation through the” Early Neutral Evaluation 7 (“ENE”) and Case Management Conference (“CMC”). ECF No. 65 at 3. On 8 November 28, the day the ENE and CMC were held without resolution, Counsel “notified 9 [Suarez] via email that upon the conclusion of the ENE and CMC, an extended scope 10 retainer agreement would be need [sic] to continue representation.” Id. Shortly thereafter, 11 Suarez purportedly indicated via email that she would not be able “to retain Tully Rinckey, 12 PLLC for further representation.” Id. 13 On December 7 Counsel for Plaintiff Suarez in the above-captioned action moved 14 to withdraw as counsel. Id. at 4. Counsel alleges that “[w]ritten discovery . . . is set to 15 commence by January 31, 2023 and therefore Plaintiff will have [a] sufficient amount of 16 time to seek new counsel if she so desires without any prejudice to either party.” Id. at 4. 17 Counsel failed to mention, and Del Toro points out in his non-opposition, that Suarez had 18 responses to requests for production and interrogatories due by January 2, 2023 which were 19 “necessary . . . to prepare for [Suarez]’s Rule 35 examination on January 11, 2023.” ECF 20 No. 70 (referring to ECF No. 67). 21 On December 19, 2022, the Court held a hearing on Counsel’s motion for leave to 22 withdraw. ECF No. 71. Suarez participated by phone and indicated she had already given 23 Tully Rinckey roughly $22,000 for their legal services; that she could not afford to pay 24 them an additional retainer; and that she needed help completing the interrogatories and 25 requests for production. When asked by the Court whether Counsel could extend legal 26 assistance to Suarez to get her through the impending January 11 deadline, Counsel 27 2 1 indicated that he was not in a position to approve pro bono services on behalf of Tully 2 Rinckey. 3 The Court granted the motion for leave to withdraw as counsel as to Steven L. 4 Herrick, who had retired, but took the matter under submission as to Ryan C. Nerney. ECF 5 No. 71. The Court extended the due date of Suarez’s responses to requests for production 6 and interrogatories from January 2, 2023 to February 3, and extended the time for the 7 Rule 35 examination to be completed to February 17, 2023. Id. Del Toro subsequently 8 asked the Magistrate Judge to reinstate the Rule 35 examination date of January 11. ECF 9 No. 72. The Magistrate Judge required Suarez to file any opposition to the motion to 10 reinstate the deadline by December 27, ECF No. 74, and subsequently granted the motion 11 when Suarez did not submit any opposition, ECF No. 75. 12 II. LEGAL STANDARD 13 Granting or denying a motion to withdraw as counsel is within the discretion of the 14 district court. See United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009) (reviewing 15 denial of motion to withdraw for abuse of discretion); In re Saber, No. 21-55913, 2022 WL 16 11592836, at *1 (9th Cir. Oct. 20, 2022). Factors commonly considered when determining 17 whether counsel should be permitted to withdraw include: “(1) the reasons why withdrawal 18 is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm 19 withdrawal might cause to the administration of justice; and (4) the degree to which 20 withdrawal will delay the resolution of the case.” In re Saber, 2022 WL 11592836, at *1. 21 In a federal proceeding, a lawyer’s conduct, including his or her duties to the client, 22 is governed by the ethical rules of the relevant court. See In re Snyder, 472 U.S. 634, 645 23 n.6 (1985) (“The state code of professional responsibility does not by its own terms apply 24 to sanctions in the federal courts. Federal courts admit and suspend attorneys as an exercise 25 of their inherent power; the standards imposed are a matter of federal law.”). “When an 26 attorney appears before a federal court, he is acting as an officer of that court, and it is that 27 3 1 court which must judge his conduct.” Cord v. Smith, 338 F.2d 516, 524 (9th Cir. 1964). 2 Absent specific ethical standards from case law, court rules, and adopted rules of 3 professional conduct, see In re Snyder, 472 U.S. at 645, those standards “promulgated by 4 the American Bar Association” (“ABA”) offer “appropriate guidance for finding the 5 current national standards of ethical norms.” In re Mitchell, 901 F.2d 1179, 1184 (3d Cir. 6 1990) (quoting In re Corn Derivs. Antitrust Litig., 748 F.2d 157, 160 (3d Cir. 1984)). 7 The Civil Local Rules do not explicitly address the matter of duties owed by 8 attorneys to their clients. The San Diego County Bar Association (“SDCBA”) instructs 9 that “[l]awyers must observe all rules of law, including the California Rules of Professional 10 Conduct and the State Bar Act, particularly [Business & Professions Code] § 6068.” The 11 Local Rules adopt the SDCBA’s code of attorney conduct “in substantial part,” but omits 12 the portion requiring that attorneys observe the California Rules of Professional Conduct 13 and Business and Professions Code. See Civ. L. R. 2.1. The Local Rules previously 14 required that attorneys practicing before the Southern District of California “comply with 15 the standards of professional conduct required by the members of the State Bar of 16 California,” but amendments have since omitted that requirement. See Riddle v. Nat’l R.R. 17 Passenger Corp., No. 14-CV-1231, 2014 WL 5783825, at *4 (S.D. Cal. Nov. 5, 2014) 18 (quoting Civ. L. R. 83.4); Beard v. Shuttermart of Cal., Inc., No. 07-CV-0594, 2008 WL 19 410694, at *2 (S.D. Cal. Feb. 13, 2008) (same). The Court accordingly looks to the ABA’s 20 Model Rules of Professional Conduct. See Mitchell, 901 F.2d at 1184. 21 The Court has not been presented with Suarez’s and Tully Rinckey’s legal services 22 agreement and does not purport to rule on the extent to which Counsel has complied with 23 accepted rules of professional conduct. However, the Court finds that several Model Rules 24 tend to implicate matters the Court should consider regarding the pending Motion for Leave 25 to Withdraw as Counsel. Rule 1.2(c), concerning the scope of representation, permits 26 lawyers to “limit the scope of the representation if the limitation is reasonable under the 27 4 1 circumstances and the client gives informed consent.” Comment 7 to Rule 1.2 emphasizes 2 the importance of reasonableness under the circumstances: 3 If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a 4 common and typically uncomplicated legal problem, the lawyer 5 and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would 6 not be reasonable if the time allotted was not sufficient to yield 7 advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the 8 duty to provide competent representation, the limitation is a 9 factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the 10 representation. See Rule 1.1. (Emphasis added.) 11 Rule 1.5 concerns fees. Comment 5 to Rule 1.5 implicates the current issue before the 12 court: 13 An agreement may not be made whose terms might induce the 14 lawyer improperly to curtail services for the client or perform them in a way contrary to the client’s interest. For example, a 15 lawyer should not enter into an agreement whereby services are 16 to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the 17 situation is adequately explained to the client. Otherwise, the 18 client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define 19 the extent of services in light of the client’s ability to pay. A 20 lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. (Emphasis added.) 21

22 III. DISCUSSION 23 The Court finds that good cause exists to conditionally grant Counsel’s Motion for 24 Leave to Withdraw as Counsel. The scope of representation to which Counsel and Suarez 25 have agreed has purportedly terminated, and Suarez has indicated an inability to pay for 26 additional legal services. “Failure to pay attorney’s fees can be a valid ground for 27 5 1 withdrawal.” Leatt Corp. v. Inn’ve Safety Tech., LLC, No. 09-CV-1301, 2010 WL 444708, 2 at *2 (S.D. Cal, Feb. 2, 2010); see Model Rules of Pro. Conduct r. 1.16(b)(5) (Am. Bar. 3 Ass’n, 1983). Given that Suarez has purportedly already paid $22,000 in legal fees to Tully 4 Rinckey and the impending discovery deadlines, the Court concludes that other factors 5 counsel against immediately granting the Motion for Leave to Withdraw as Counsel. 6 Despite Counsel’s assertion to the contrary, the Court finds that allowing Counsel to 7 withdraw immediately—whether today or a month ago when the motion was filed—would 8 be prejudicial to both Suarez and Defendant Del Toro in this proceeding. Suarez has 9 emphasized that she needs help responding to Del Toro’s requests for production and 10 interrogatories.1 Del Toro has emphasized the importance of holding the Rule 35 11 examination on January 11, 2023. See ECF No. 72 (discussing conflicts that would arise 12 if examination were rescheduled). The Court is concerned that Counsel omitted any 13 reference to these early January deadlines in its Motion for Leave to Withdraw as Counsel, 14 see ECF No. 65 at 4 (absence), and that the Court instead received notice of these dates 15 from the opposition, see ECF No. 70.2 Immediate withdrawal would therefor 16 impermissibly delay the proceedings, and the timing of Counsel’s motion suggests that 17 regardless of the retainer agreement in place, Counsel may have been induced to 18 improperly and prejudicially curtail services for Suarez or perform them in a way contrary 19 20 21 1 Suarez most recently expressed her concerns to the Court via ex parte phone calls on 22 January 9 and 10, 2023. Counsel is hereby instructed to remind their clients of the rules pertaining to communicating with Chambers and to emphasize that Chambers is 23 prohibited from giving legal advice. 24 2 Although the Rule 35 examination was not approved by the Court until December 8, the 25 day after Counsel’s motion for leave to withdraw, ECF No. 67, Counsel had signed the December 6 Joint Motion For Order Authorizing Fed. R. Civ. P. 35 Defense 26 Examination, ECF No. 63 at 4. 27 6 1 ||to Suarez’s interests. See Model Rules of Pro. Conduct r. 1.5 cmt. 5 (Am. Bar. Ass’n, 2 || 1983). 3 Counsel is thus permitted to withdraw, subject to Counsel’s compliance with its 4 || existing and ongoing ethical obligations to its client, which entail advising Suarez with the 5 35 examination and related requests for production and interrogatories at no 6 || additional cost to Suarez. To the extent Counsel is agreeable to proceeding in this matter, 7 || the Court will forgo any further inquiry into the extent to which Counsel has complied with 8 ||the relevant rules of professional conduct thus far. Upon completion of the Rule 35 9 || examination and related requests for production and interrogatories, Counsel is instructed 10 file a status report with the Court attesting to their completion. 11 Suarez has been on notice at least since December 7, 2022 of her need to either pay 12 additional retainer fees to Tully Rinckey or to find alternative legal counsel. Suarez is 13 || instructed that within thirty days of the date of this Order she shall notify the Court whether 14 will proceed in this matter represented by Tully Rinckey, represented by alternative 15 counsel, or self-represented. 16 17 IT IS SO ORDERED. 18 ||Dated: January 10, 2023 Crate 0k 19 Hon. Gonzalo P. Curiel 20 United States District Judge 21 22 23 24 25 26 27 28 22-CV-002 1-GPC-BLM