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Al-Sabah v. Agbodjogbe

United States District Court, D. Maryland

April 3, 2019

ALIA SALEM AL-SABAH, Plaintiff,
v.
JEAN AGBODJOGBE, et al, Defendants.

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         On December 28, 2018, defendants' counsel, Jason M. St. John, Mark Simanowith, Jillian K. Walton, and the law firm of Saul Ewing Arnstein & Lehr LLP (collectively, "defendants' counsel"), moved for leave to withdraw as counsel for defendants Jean Agbodjogbe; Nandi Scott; N&A Kitchen, LLC; N&A Kitchen II, LLC; 5722 York Road, LLC; 9 Jewels, LLC; and ASA Foundation, Inc. ECF 132 (the "Motion"). That same day, the Court granted the Motion, provided, however, that by January 9, 2019, any defendant could move to rescind this Order as improvidently granted. ECF 134 (the "Order").

         On January 7, 2019, Mr. Agbodjogbe so moved (ECF 136), asking the Court to rescind the Order and "not allow [his] counsel to withdraw from this case." Id. at 1. Mr. Agbodjogbe acknowledges that he owes counsel $141, 000, but he maintains that he has paid defense counsel "hundreds of thousands" of dollars. Moreover, he claims that he is "entirely committed" to paying his legal bills in full. Id.

         Agbodjogbe also maintains that he will be unfairly burdened by the withdrawal of counsel. A new attorney would require significant time to review the materials in this case and would charge a significant retainer to account for those costs. Id. He also correctly asserts that, without legal representation, the defendant entities will be in default. Id.

         The Court ordered defendants' counsel to respond by January 22, 2019. ECF 137. In response (ECF 140), they maintain that they are entitled to withdraw from the case. According to defendants' counsel, they entered an engagement agreement (ECF 140-1) (the "Agreement") with defendants, who agreed "to make timely payment of fees and agreed to consent to the withdrawal of Counsel from the representation in this action if the defendants did not pay their fees in a timely manner." Id. at 2-3. Further, they state that defendants "have failed to substantially fulfill their obligations" under the Agreement because they "owe more than $140, 000 to Counsel and have not made a payment in over three months." Id. at 3.

         The Federal Rules of Civil Procedure do not regulate appearance of counsel, which is governed by local rules. In this Court, withdrawal of appearance by an attorney for an individual is governed by Local Rule 101.2.a, which provides:

In the case of an individual, appearance of counsel may be withdrawn only with leave of Court and if (1) appearance of other counsel has been entered, or (2) withdrawing counsel files a certificate stating (a) the name and last known address of the client, and (b) that a written notice has been mailed to or otherwise served upon the client at least seven (7) days previously advising the client of counsel's proposed withdrawal and notifying the client either to have new counsel enter an appearance or to advise the Clerk that the client will be proceeding without counsel. If the withdrawal of counsel's appearance is permitted, the Clerk shall notify the party that the party will be deemed to be proceeding pro se unless and until new counsel enters an appearance on behalf of the party.

         Notably, Mr. Agbodjogbe does not contend that defendants' counsel failed to comply with Local Rule 101.2.a.

         Although there is scant case law interpreting the local rule, the cases that do exist emphasize that withdrawal by an attorney is not a matter of right, but is subject to leave of court. See Abbott v. Gordon, Civ. No. DKC-09-0372, 2010 WL 4183334, at *1 (D. Md. Oct. 25, 2010) ("The decision to grant or deny an attorney's motion to withdraw is committed to the discretion of the district court."); Lenoir v. Pyles, 320 F.Supp.2d 365 (D. Md. 2004) (denying local counsel's motion to withdraw, where out-of-state lead counsel, who had been admitted pro hac vice, had been disbarred in his home jurisdiction, and stating: "Local Rule 101.2.a permits withdrawal of counsel only with leave of Court.7') (emphasis in original); Roberts v. County Comm'rs of Cecil County, 906 F.Supp. 304 (D. Md. 1995) (denying motion to withdraw by appointed pro bono counsel representing indigent litigant in prisoner civil rights case).

         In Abbott, Judge Chasanow opined that the Maryland Rules of Professional Conduct ("MRPC"), governing permissive withdrawal, "provide a benchmark for when withdrawal may be permitted." Abbott, 2010 WL 4183334, at * 1.[1] The applicable provisions of the MRPC are found in Rule 1.16(b):

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is ...

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