Henneberry v. City of Newark
- Thomas Hixson
- 3:13-cv-05238
- U.S. District Court · Northern District of California
- 5
In Henneberry v. City of Newark, Judge Hixson granted counsel’s withdrawal motion, requiring document forwarding until Henneberry obtains counsel or chooses self-representation.
John Patrick Henneberry and Durie Tangri LLP: Durie Tangri was permitted to withdraw but must continue forwarding filed documents until Henneberry represents himself or replacement counsel appears.
What happened
In Henneberry v. City of Newark, court-appointed lawyers from Durie Tangri asked to withdraw after representing John Patrick Henneberry for more than four years. The case had reached trial three times, including a trial that ended with a deadlocked jury and a mistrial.
The court found good cause for withdrawal and noted that the lawyers had given Henneberry advance notice and time to seek replacement counsel. The court also recognized that he might be left without a lawyer, but said that possibility alone did not justify denying the request.
Judge Hixson granted the withdrawal motion with conditions. Durie Tangri must continue receiving and forwarding documents to Henneberry until he files notice that he will represent himself and provides a service address, or until replacement counsel appears; the January 19, 2023 trial-scheduling conference was also vacated.
The detailed version
- Henneberry v. City of Newark · No. 3:13-cv-05238
- Thomas Hixson
- Dec. 21, 2022
Background
John Patrick Henneberry accepted the court’s offer to refer the matter to the Federal Pro Bono Project in October 2018. In November 2018, the court appointed Durie Tangri LLP as pro bono counsel. By then, the court had ruled on summary-judgment motions and motions in limine, and the parties were scheduling trial.
Trial dates in March 2020 and May 2022 were vacated because of the COVID-19 pandemic and counsel’s positive COVID-19 test, respectively. The case was tried from November 8 through November 10, 2022. On November 14, 2022, the court declared a mistrial because the jury was deadlocked.
Durie Tangri filed its motion to withdraw on December 6, 2022, stating that it believed alternate representation might better accomplish Henneberry’s goals. No opposition was filed. The court decided the motion without oral argument and vacated the January 19, 2023 hearing.
Legal standard
The court’s local rules require an attorney seeking to withdraw to give reasonable advance written notice to the client and other parties and to obtain the court’s permission. California professional-conduct rules also require counsel to take steps to avoid reasonably foreseeable harm to the client, including giving the client time to obtain another lawyer and returning client materials and property.
If withdrawal is not accompanied by substitute counsel or an agreement that the client will proceed without a lawyer, the court may require the withdrawing lawyer to continue receiving and forwarding documents until the client appears through new counsel or without counsel.
Court’s analysis
The court found good cause for withdrawal. Durie Tangri had spent considerable time and resources on the matter and had prepared for trial three times. The court also considered the possibility that withdrawal would leave Henneberry without an attorney and noted that the Pro Bono Project lacked resources to place the case a second time. It concluded that this possibility did not alone justify denying the motion.
The court further noted that pretrial matters, including discovery and dispositive motions, were closed and that the remaining task was to schedule a new trial. It found that Durie Tangri had provided Henneberry reasonable advance notice and time to obtain substitute counsel, satisfying the applicable local and professional-conduct rules.
Disposition
The court GRANTED Durie Tangri’s motion to withdraw as counsel, on the condition that Durie Tangri remain counsel of record to forward documents filed by the parties or the court to Henneberry until either Henneberry files notice that he will represent himself and provides an address for service, or a substitution of counsel is filed. For documents covered by that condition, Durie Tangri must file proof of service within three business days of filing.
The court VACATED the January 19, 2023 trial-scheduling conference and stated that it would be rescheduled after Henneberry files notice that he will represent himself or a substitution of counsel is filed. The opinion states that Henneberry was proceeding without a lawyer and directed him to the court’s handbook for litigants without a lawyer.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.