Hearrell v. Pro Motorsports Group Limited et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Zack Hearrell,
Plaintiff,
v.
Pro Motorsports Group Limited, et al.,
Defendants.
No. CV-25-00440-PHX-DWL
ORDER
Pending before the Court is a motion to withdraw as counsel of record without client
consent (Doc. 41) filed by Plaintiff’s counsel, Clifford P. Bendau, II and Christopher J.
Bendau of Bendau & Bendau PLLC (“Counsel”).
Ninth Circuit law suggests a “justifiable cause” standard applies when, as here, the
client does not affirmatively consent to the withdrawal request. Lovvorn v. Johnston, 118
F.2d 704, 706 (9th Cir. 1941) (“An attorney may not, in the absence of the client’s consent,
withdraw from a case without justifiable cause; and then only after proper notice to his
client, and on leave of the court.”). “Justifiable cause” is not a terribly demanding standard,
and the professional considerations listed in ER 1.16 will often satisfy it, so long as other
factors don’t outweigh those considerations. Gagan v. Monroe, 2013 WL 1339935, *4 (D.
Ariz. 2013) (“Factors that a district court should consider when ruling upon a motion to
withdraw as counsel include: (1) the reasons why withdrawal is sought; (2) the prejudice
withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the
administration of justice; and (4) the degree to which withdrawal will delay the resolution
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of the case.”). “[T]he trial court retains wide discretion in a civil case to grant or deny
counsel’s motion to withdraw.” Bohnert v. Burke, 2010 WL 5067695, *1 (D. Ariz. 2010).
“When ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.” Ariz. R. Prof’l. Cond. ER
1.16(c).
Here, the Court is unable to determine how much Counsel’s reasons weigh in favor
of withdrawal because the Court has no idea what Counsel’s reasons are. Local Rule
83.3(b) provides that the application to withdraw must set forth the reasons for the
withdrawal. Counsel avers that withdrawal “is necessary because professional
considerations require termination of the representation.” (Doc. 41 at 1.) However,
Counsel does not specify what the “professional considerations” are. In the Court’s
experience, attorneys sometimes identify any reason listed in ER 1.16 as a “conflict” or
“irreconcilable difference” requiring withdrawal, although in fact, certain listed reasons do
not force an attorney to violate any ethical rules and do not constitute circumstances where
the attorney “shall” withdraw but merely establish that the attorney “may” withdraw, unless
the tribunal orders continued representation. Compare Ariz. R. Prof’l. Cond. ER 1.16(a)
with ER1.16(b). See, e.g., Brown v. City of Glendale, 2:18-cv-01267-DWL, Doc. 64 at 3
(a client’s failure to pay does not “somehow force[] [an attorney] to violate any ethical
rules if required to keep litigating [the] case” but is merely a reason “why the firm would
prefer to withdraw.”), Hoppmann v. Pampered Pets & Plants Incorporated et al, 2:22-cv-
00427-DWL, Doc. 47 at 5 (“Far from being ‘an unwaivable conflict of interest’ that
‘necessitates Applicants’ withdrawal,’ a client’s failure to pay is a circumstance through
which attorneys often continue representation. Continued representation where a client
fails to pay would not violate any rule of professional conduct and withdrawal is not
mandatory under the circumstances.”). The reasons listed in ER 1.16 run the gamut from
the client’s failure to timely pay his attorney to the client’s persistent criminal or fraudulent
acts. In short, some of the reasons are more compelling than others. The Court cannot
weigh whether the reasons for withdrawal are outweighed by the harm withdrawal might
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cause to Plaintiff or to the administration of justice without knowing those reasons.
The Court cannot exercise its discretion to grant or deny a motion to withdraw in
the absence of client consent without knowing the reason(s) justifying withdrawal.1 United
States v. Williams, 717 F.2d 473, 475 (9th Cir. 1983) (“A trial court’s decision to release
counsel is an exercise of its discretion”); Woodall v. Drake Hotel, Inc., 913 F.2d 447, 449–
50 (7th Cir. 1990) (“[C]ounsel bore the burden of demonstrating that [the clients] had
consented to the motion . . . or that there was a valid and compelling reason for the court
to allow the withdrawal over objection. . . . Because class counsel never disclosed, and the
court never compelled counsel to disclose, the reason for withdrawal, the court abused its
discretion by granting the motion.”).
By requiring Counsel to submit an ex parte affidavit under seal2 in support of the
withdrawal motion and allowing Plaintiff the opportunity to respond (again, ex parte and
under seal), the Court can gain the information it needs to appropriately balance the
withdrawal factors while ensuring that no communications assertedly protected by
attorney-client privilege are disclosed to the public or to Defendants. See, e.g., Sabre Int’l
Security v. Torres Advanced Enterprise Solutions, LLC, 219 F. Supp. 3d 155, 158-59
(D.D.C. 2016) (“Numerous courts have reviewed . . . affidavits under seal to ascertain the
basis of the motion to withdraw without upsetting the attorney-client privilege.”); Team
Obsolete Ltd. v. A.H.R.M.A. Ltd., 464 F.Supp.2d 164, 165-66 (E.D.N.Y. 2006) (“A review
of the relevant case law demonstrates that documents in support of motions to withdraw as
counsel are routinely filed under seal where necessary to preserve the confidentiality of the
attorney-client relationship between a party and its counsel, and that this method is viewed
favorably by the courts.”).
On the other hand, if Counsel can obtain Plaintiff’s written consent, no affidavit will
1 The Court recognizes that the comments to ER 1.16 state that a non-specific avowal
“that professional considerations require termination of the representation ordinarily
should be accepted as sufficient.” The Court respectfully disagrees. Such an assertion is
too vague to allow the Court to exercise its discretion in any meaningful way or to ensure
that “justifiable cause” truly exists to support the withdrawal request.
2 For Plaintiff’s benefit: “ex parte” means the other parties cannot see it, and “under
seal” means the public cannot see it.
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be necessary, as this Court generally grants motions to withdraw as counsel with client
consent, absent unusual circumstances not present here.
Accordingly,
IT IS ORDERED that by May 22, 2026, Counsel shall submit an ex parte affidavit
under seal explaining her reasons for seeking to withdraw as counsel for Plaintiff without
his consent, via hand-delivery in a sealed envelope marked “For Judge Lanza’s Eyes Only”
to the Clerk, who shall hand-deliver the affidavit to chambers, rather than filing it.
IT IS FURTHER ORDERED that by May 22, 2026, Counsel shall provide a copy
of the ex parte affidavit, as well as this Order, to Plaintiff by transmitting those documents
via first-class mail to the residential address listed in Counsel’s motion and, if Counsel has
an email address for Plaintiff, via email as well.
IT IS FURTHER ORDERED that Plaintiff (on his own, without Counsel’s
assistance) may respond to Counsel’s withdrawal motion by June 5, 2026, by submitting
an ex parte affidavit under seal, hand-delivered in a sealed envelope marked “For Judge
Lanza’s Eyes Only” to the Clerk, who shall hand-deliver it to chambers, rather than filing
it.
Dated this 14th day of May, 2026.
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