“[T]he Ninth Circuit refers to the local rules of each district when deciding which standards govern an ethical 28 1 Under the Court’s Civil Local Rules, a motion to withdraw must: (1) be served on 2 the adverse party and moving attorney’s client; and (2
How later courts described this case
- “[T]he Ninth Circuit refers to the local rules of each district when deciding which standards govern an ethical 28 1 Under the Court’s Civil Local Rules, a motion to withdraw must: (1) be served on 2 the adverse party and moving attorney’s client; and (2
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 SECURITIES AND EXCHANGE Case No.: 20-cv-01864-H-BJC
COMMISSION,
12
ORDER GRANTING MOTION TO
Plaintiff,
13 WITHDRAW AS COUNSEL FOR
v. DEFENDANT MICHAEL WEXLER
14
ONGKARUCK SRIPETCH; AMANDA
15 [Doc. No. 227.]
FLORES; BREHNEN KNIGHT;
16 ANDREW MCALPINE, ASHMIT
PATEL; MICHAEL WEXLER;
17
DOMINIC WILLIAMS; ADTRON INC.
18 a/k/a STOCKPALOOZA.COM; ATG
INC.; DOIT, LTD.; DOJI CAPITAL,
19
INC.; KING MUTUAL SOLUTIONS
20 INC.; OPTIMUS PRIME FINANCIAL
INC.; ORCA BRIDGE; REDLINE
21
INTERNATIONAL; and UAIM
22 CORPORATION,
23 Defendants.
24
On November 14, 2024, Austin Legal Group, APC (“ALG”), counsel for Defendant
25
Michael Wexler in this action, filed a motion to withdraw as counsel for Defendant Wexler.
26
(Doc. No. 227.) On November 18, 2024, Plaintiff Securities and Exchange Commission
27
(“SEC”) filed a notice of non-opposition to ALG’s motion to withdraw. (Doc. No. 232.)
28
1 The Court held a hearing on the motion to withdraw on December 16, 2024.
2 Christopher J. Dunnigan and Kristine M. Zaleskas appeared for Plaintiff SEC. Tamara L.
3 Rozmus appeared for Defendant Wexler. For the reasons below, the Court grants ALG’s
4 motion to withdraw.
5 Rule 1.16(b) of the ABA rules governs permissive withdrawals of counsel and
6 provides that “a lawyer may withdraw from representing a client if . . . the representation
7 will result in an unreasonable financial burden on the lawyer or has been rendered
8 unreasonably difficult by the client.”1 Model Rules of Pro. Conduct r. 1.16(b)(6) (Am.
9 Bar. Ass’n 2020). Rule 1.16(c) further provides: “A lawyer must comply with applicable
10 law requiring notice to or permission of a tribunal when terminating a representation.” Id.
11 r. 1.16(c).
12 “In federal court, ‘[a]n attorney may not withdraw as counsel except by leave of
13 court, and the decision to grant or deny counsel’s motion to withdraw is committed to the
14 discretion of the trial court.’” Westhoff Vertriebsges mbH v. Berg, No. 22-CV-0938-BAS-
15 SBC, 2024 WL 947803, at *1 (S.D. Cal. Feb. 14, 2024). “To determine whether counsel
16 should be allowed to withdraw, courts consider ‘(1) the reasons why withdrawal is sought;
17 (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might
18 cause to the administration of justice; and (4) the degree to which withdrawal will delay
19 the resolution of the case.’” In re Saber, No. 21-55913, 2022 WL 11592836, at *1 (9th
20 Cir. Oct. 20, 2022) (quoting Williams v. Cnty. of Fresno, 562 F. Supp. 3d 1032, 1035 (E.D.
21 Cal. 2021)).
22
23
1 ALG’s motion cites to the California Rules of Professional Conduct, not the ABA
24
rules. (Doc. No. 227-1 at 2.) However, the ABA Model Rules of Professional Conduct
25 apply to cases in the Southern District of California. See Stanz v. Brown, No. 3:22-CV-
01164-GPC-JLB, 2024 WL 4267191, at *1 n.1 (S.D. Cal. Sept. 23, 2024); Suarez v. Del
26
Toro, No. 22-CV-0021-GPC-BLM, 2023 WL 149105, at *2 (S.D. Cal. Jan. 10, 2023); see
27 also Radcliffe v. Hernandez, 818 F.3d 537, 541 (9th Cir. 2016) (“[T]he Ninth Circuit refers
to the local rules of each district when deciding which standards govern an ethical
28
1 Under the Court’s Civil Local Rules, a motion to withdraw must: (1) be served on
2 the adverse party and moving attorney’s client; and (2) include a declaration pertaining to
3 service of the motion. S.D. Cal. Civ. L.R. 83.3(f)(3). “Failure to make service as required
4 . . . or to file the required declaration of service will result in a denial of the motion.” Id.
5 As an initial matter, the present motion to withdraw complies with the Court’s Civil
6 Local Rules. ALG attached to its motion to withdraw, a declaration stating that Plaintiff
7 SEC was served with the motion to withdraw via the Court’s ECF filing system, and
8 Defendant Wexler was served with the motion to withdraw via email and mail to his last
9 known physical address. (See Doc. No. 227-2, Rozmus Decl. ¶¶ 4-7.) This is sufficient to
10 comply with Civil Local Rule 83.3(f)(3).
11 Turning to the merits of the motion, defense counsel has provided the Court with a
12 declaration from attorney Tamara L. Rozmus stating that Defendant Wexler “materially
13 breached the Legal Services Agreement (“LSA”) such that it is unreasonably difficult for
14 me to perform services as Mr. Wexler’s counsel.” (Doc. No. 227-2, Rozmus Decl. ¶ 3; see
15 also Doc. No. 227-1 at 2-3.) This is a sufficient reason for permitted ALG to withdraw as
16 counsel for Defendant Wexler. See Model Rules of Pro. Conduct r. 1.16(b)(6); see also
17 Cal. Rules of Pro. Conduct r. 1.16(b)(4)–(5). It does not appear that permitting the
18 withdraw would cause any harm to any of the other litigants in this action. Indeed, the
19 adverse party here, Plaintiff SEC, has filed a notice of non-opposition to ALG’s motion to
20 withdraw. (Doc. No. 232.) Nor is there any reasons to believe that the withdraw will
21 unnecessarily delay resolution of this case or harm the administration of justice.
22 For the reasons above, the Court grants ALG’s motion to withdraw. Austin Legal
23 Group, APC – including attorneys Gina M. Austin and Tamara L. Rozmus – is withdraw
24 as counsel of record for Defendant Michael Wexler in this action. The Court orders the
25 Clerk of Court to terminate Ms. Austin and Ms. Rozmus as counsel of record for Defendant
26 Wexler from the CM/ECF docket.
27 ALG must file a notice providing the Court with Defendant Wexler’s phone number,
28 email address, and last known physical mailing address within seven (7) days from the
1 this order is filed. In addition, within seven (7) days from the date this order is
2 || filed, ALG must provide Defendant Wexler via mail and email with: (1) a copy of this
3 || order; (2) a copy of the Court’s December 16, 2024 order granting Plaintiff SEC’s motion
4 ||for summary judgment; and (3) the following links along with an advisement that if he
5 || decides to represent himself and proceed pro se in this civil action, he must file a motion
6 || for leave to electronically file (e-file) documents in order to electronically file documents
7 this civil action. See https://www.casd.uscourts.gov/Prose/Prose-FilingInfo.aspx; see
8 || also https://www.casd.uscourts.gov/ProSe.aspx
9 The Court schedules a telephonic status hearing for Monday, January 6, 2025 at
10 || 10:30 a.m. ALG must appear at the status hearing. The filing of a declaration stating that
11 || ALG has satisfied all the requirements set forth above in this order will result in the Court
12 || vacating the status conference.
13 IT IS SO ORDERED.
14 || DATED: December 16, 2024 | | | jul | | |
15 MARILYN ¥®. HUFF, Distri ge
16 UNITED STATES DISTRICT COURT
17
18
19
20
21
22
23
24
25
26
27
28