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Rehburg v. Bob Hubbard Horse Transportation, Inc.

United States District Court, D. New Mexico

March 20, 2019

LISA M. REHBURG, Plaintiff,
v.
BOB HUBBARD HORSE TRANSPORTATION, INC. Defendant.

          ORDER DENYING MOTION FOR WITHDRAWAL OF COUNSEL

          THE HONORABLE JERRY H. RITTER UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon & Motion for Withdrawal of Counsel [Doc. 29] filed on December 21');">1');">1');">1, 201');">1');">1');">18, by Plaintiffs attorney Raul A. Carrillo, Jr. Defendant Bob Hubbard Horse Transportation, Inc. ("BHHT"), filed a response in opposition [Doc. 30] on December 22, 201');">1');">1');">18, which it withdrew [Doc. 36] on January 7, 201');">1');">1');">19, indicating no further opposition to Carrillo's withdrawal as counsel. Plaintiff Lisa M. Rehburg herself filed Plaintiff's Opposition to the Carrillo Law Firm, P.C. 's Motion for Withdrawal as Counsel for Plaintiff" [Doc. 34] on January 4, 201');">1');">1');">19, and a supplemental opposition [Doc. 39] on January 22, 201');">1');">1');">19.

         As grounds for withdrawal, attorney Carrillo asserts only that "[a]n effective attorney-client relationship no longer exists" between himself and his client Rehburg. [Doc. 29, 1');">1');">1');">1');">p. 1');">1');">1');">1');">1');">1');">1');">1');">p. 1');">1');">1');">1]. Rehburg disagrees and says that she has been fully cooperative and communicative and is unaware of any basis for concern. [Doc 34, p. 2');">p. 2]. Rehburg opposes Carrillo's withdrawal because she fears resulting material adverse effects upon her case, first because it is at a critical stage due to scheduled depositions and outstanding discovery requests, [Doc. 34, p1');">1');">1');">1');">p. 1');">1');">1');">1');">1');">1');">1');">1');">p. 1');">1');">1');">1-2], and second because she hired Carrillo's law firm on a contingency basis and does not believe she can either find a new firm on a contingency basis or afford a new firm at hourly rates. [Doc. 39, 1');">1');">1');">1');">p. 1');">1');">1');">1');">1');">1');">1');">1');">p. 1');">1');">1');">1].

         The issue then is whether the Court should allow an attorney to withdraw from a pending case when the attorney asserts that the previous attorney-client relationship is destroyed but the client disagrees and opposes the motion and asserts that withdrawal will materially adversely affect her case due to outstanding discovery and scheduled depositions and an asserted inability to obtain substitute counsel.

         PROCEDURAL CLEAN-UP

         There are two initial matters to address. First, BHHT initially opposed the motion to withdraw but later withdrew its opposition. [Doc. 30; Doc. 36] By that time, however, Rehburg had filed her own opposition, [Doc. 34], and so the motion will be treated as opposed in order to resolve the dispute between attorney Carrillo and Plaintiff Rehburg.

         Second, in her opposition to withdrawal, Rehburg alleges that Carrillo has violated New Mexico Rule of Professional Conduct 1');">1');">1');">16-1');">1');">1');">11');">1');">1');">16(B)(3) NMRA. That rule states that "a lawyer may withdraw from representing a client if: ... (3) the client has used the lawyer's services to perpetrate a crime or fraud." Rule 1');">1');">1');">16-1');">1');">1');">11');">1');">1');">16(B)(3). Rehburg's reliance on the Rule appears mistaken for two reasons. First, it is a rule authorizing, not prohibiting, withdrawal. Second, it only applies when a client has used the lawyer to perpetrate a crime or fraud. Nothing in the record suggests that Rehburg is admitting that she used Carrillo to perpetrate a crime or fraud and, even if she were, it makes no sense to cite a rule allowing withdrawal as a reason to prevent it. The Court will disregard the citation to Rule 1');">1');">1');">16-1');">1');">1');">11');">1');">1');">16.

         Rehburg's procedural objections to the motion, see [Doc. 34, p. 2');">p. 2], are addressed next.

         PROCEDURAL REQUIREMENTS OF A MOTION TO WITHDRAW

         The Local Rules of the United States District Court for the District of New Mexico establish the proper procedure for an attorney's motion to withdraw. For all motions, the movant must determine and state "whether a motion is opposed, and a motion that omits recitation of a good-faith request for concurrence may be summarily denied." D.N.MLR-Civ. 7.1');">1');">1');">1(a). Carrillo stated in his motion that he contacted BHHT about withdrawal and received no response. [Doc. 29, 1');">1');">1');">1');">p. 1');">1');">1');">1');">1');">1');">1');">1');">p. 1');">1');">1');">1]. BHHT's initial opposition and subsequent consent to withdrawal are now a matter of record. [Doc. 30; Doc. 36]. Rehburg's procedural objections do not rely upon BHHT's position and so it appears that her own reliance upon Rule 7.1');">1');">1');">1(a) raises different issues which are discussed next.

         Local Rule 7.1');">1');">1');">1(a) incorporates additional procedures stated in Local Rule 83.8 when a motion seeks permission for an attorney to withdraw, except that those requirements do not apply when a member of a law firm withdraws but another member of the firm remains counsel in the case. See D.N.M.LR-Civ. 83.4(b). In this case, Carrillo seeks to withdraw the firm entirely from the representation, [Doc. 29, [1');">1');">1');">1');">p. 1');">1');">1');">1');">1');">1');">1');">1');">p. 1');">1');">1');">1], and so the additional procedures are required. While technically a violation of Local Rule 83.8 would also violate Local Rule 7.1');">1');">1');">1(a) by incorporation, the substance of Rehburg's objections fall within Local Rule 83.8 and so are discussed further in that context.

         When a motion is unopposed, and the client is a natural person, both the motion and any proposed order must state that the attorney's client consents to withdrawal, and either give notice of appointment of substitute counsel or give notice that the client intends to appear pro se. See D.N.M.LR-Civ. 83.8(a). When the motion to withdraw is contested, it must give notice "that objections must be served and filed within fourteen (1');">1');">1');">14) days from date of service of the motion and that failure to object within this time constitutes consent to grant the motion." D.N.M.LR-Civ. 83.8(b).

         REHBURG'S PROCEDURAL OBJECTIONS TO WITHDRAWAL

         Rehburg raises three distinct procedural objections to Carrillo's motion to withdraw: (1');">1');">1');">1) neither the motion nor any proposed order recites that Rehburg consents; (2) neither the motion nor any proposed order recites that Rehburg intends to appear pro se, and; (3) the motion does not give the required notice ...


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