Franklin v. McDonough

Background

The court had referred the matter to the Federal Pro Se Program to help David M. Franklin with a settlement conference. The court then appointed Dayme Sanchez of the Jones Day law firm as counsel for Franklin, but only for that limited purpose. Sanchez moved to withdraw and stated that Franklin did not oppose the motion. Franklin did not file a response by the deadline set by the court.

Franklin separately requested appointment of counsel for the entire case, or alternatively help with discovery and an anticipated motion for summary judgment. He explained that the defendant had indicated an intention to seek summary judgment before the settlement conference. The defendant agreed that, if such a motion were filed before the conference, the briefing schedule should be paused until after the conference if settlement failed.

Motion to Withdraw

The court explained that counsel may withdraw only after receiving a court order and providing reasonable written notice to the client and other parties who have appeared. It also considered the reasons for withdrawal, possible prejudice to other litigants, harm to the administration of justice, and delay.

Sanchez relied on the California rule allowing withdrawal when a client knowingly and freely agrees. The court found no immediate deadlines, no apparent prejudice to Franklin, and no undue delay from withdrawal. It also noted that Franklin apparently did not object. The court granted Sanchez’s motion to withdraw.

Request for Full-Scope Counsel

The court stated that civil litigants generally have no right to appointed counsel. It nevertheless explained that Title VII of the Civil Rights Act allows a court to appoint an attorney in appropriate circumstances. The court considered Franklin’s financial resources, his efforts to obtain counsel, and the merits of his action.

Because Franklin was proceeding without paying filing fees, he satisfied the financial-resources factor. But the court found that he had not sufficiently described efforts to obtain counsel, including how many attorneys he contacted, who they were, or when he contacted them. The court also found that he had not shown or argued enough about the merits of his action. The defendant pointed to adverse administrative decisions, including an agency grant of summary judgment against Franklin, and Franklin did not deny that those decisions had been issued. The court was therefore not prepared to find that the case had enough merit to justify full-scope counsel. It denied Franklin’s motion for appointment of counsel for full-scope representation at this time.

Further Proceedings and Disposition

Because Sanchez had withdrawn as settlement counsel, the court referred the matter back to the Federal Pro Se Program to locate another lawyer for the limited purpose of assisting Franklin with a settlement conference. If the Program located one, the court would appoint that lawyer for that limited representation. The court also stated that it would issue an order ending the volunteer lawyer’s limited representation after the settlement purpose was completed.

The litigation was not stayed, meaning it was not paused. The parties were expected to continue following the deadlines in the case-management order. The order ruled on the motions for withdrawal and appointment of counsel; it did not decide the underlying claims.