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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN E. ABDO, et al.,

Plaintiffs,

v.

MICHAEL FITZSIMMONS, et al.,

Defendants.

RISING TIDE I, LLC, et al.,

Plaintiffs,

v.

MICHAEL FITZSIMMONS, et al.,

Defendants.

Case No. 17-cv-00851-TSH 

ORDER RE: MOTION TO 

WITHDRAW AS COUNSEL AND 

ADMINISTRATIVE MOTION TO 

SEAL

Case No. 17-cv-01232-TSH 

I. INTRODUCTION

On June 26, 2020, Seyfarth Shaw LLP (“Counsel”) filed a Motion to Withdraw, based on a 

conflict of interest, as Counsel for Defendant Ernest D. Del. ECF No. 170.

1

 Del filed a 

Declaration in opposition to the Motion to Withdraw, ECF No. 176

2

, and Counsel filed a Reply, 

ECF No. 180. Also before the Court is Counsel’s Administrative Motion to File Under Seal 

exhibits to the Reply. ECF No. 179. The Court finds this matter suitable for disposition without 

oral argument and VACATES the August 6, 2020 hearing. See Civ. L.R. 7-1(b). Having 

considered the record in this case and relevant legal authority, the Court GRANTS both motions

1 All citations to the docket are to docket in Abdo v. Fitzsimmons. The motion and moving papers 

are identical in Rising Tide v. Fitzsimmons, and the Court will omit reference to docket numbers in 

that case, though this Order will resolve the motion in that case as well, ECF No. 166. 

2 Del filed only a declaration in opposition to the motion. He filed no briefing papers. 

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for the following reasons.

II. BACKGROUND

Gregory A. Markel, Giovanna A. Ferrari, Aaron Belzer, Christopher F. Robertson, and 

Steven R. Paradise of Seyfarth Shaw LLP currently represent Ernest D. Del, Michael 

Fitzsimmons, and Peter Lai in these related actions.3 They were initially retained to represent all

the Defendants. Defendants are all former officers or directors of Delivery Agent, Inc., a tcommerce company in which Plaintiffs invested. Del is himself an attorney. He is a founding 

partner of the Los Angeles-based law firm Del Shaw Moonves Tanaka Finkelstein & Lezcano. 

Counsel were retained by Del pursuant to a retention agreement, dated March 9, 2017 and signed 

by Del on March 21, 2017 (the “2017 Representation Agreement”), which acknowledged that 

Counsel would be representing the other Defendants as well. Decl. of Giovanna A. Ferrari ISO 

Mot. to Withdraw (“Ferrari Decl.”) ¶ 5, ECF No. 170-1. Because of the nature of the joint 

representation with the other Defendants, Counsel alerted Defendants that a conflict could arise 

during the litigation:

It is possible that facts will occur or come to light hereafter which 

give rise to, or cause you or Seyfarth to conclude that there is[,] such 

a conflict. You acknowledge and agree that, in the event that a 

conflict of interest arises regarding Seyfarth Shaw’s multiple 

representation of you and the other defendants, then we may withdraw 

from representing you. . . . You further acknowledge and agree that, 

if Seyfarth Shaw withdraws as your attorneys, we may and will 

continue to represent the other defendants, whether or not such 

representation is in a matter unrelated to the Action and is or may be 

contrary to your interests.

Id. ¶ 6. 

On January 17, 2020, Counsel sent Defendants a letter along with a revised retainer

(together, the “Revised Retainer”) informing them conflicts of interest had in fact arisen. Id. ¶ 9; 

Reply Decl. of Ferrari ISO Mot. to Withdraw (“Ferrari Reply Decl.”) ¶ 3, Ex. A, ECF No. 179-3. 

Counsel informed Defendants that in continuing with a joint representation, Defendants would 

need to waive the conflicts with the understanding that Counsel might be unable to, among other 

3 Defendant Marc Yi has retained separate counsel, and Movants expect his new counsel to file a 

substitution of counsel in the near future. Mot. at 1. 

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things, assert certain positions or raise certain defenses for some Defendants that it could for 

others. Ferrari Decl. ¶ 9. Specifically, Counsel advised Defendants that, considering the actual 

conflicts that had arisen, “[i]n continuing with a joint representation, we could not take certain 

positions or assert defenses that might otherwise be available to you.” Id. According to Counsel, 

on a number of subsequent joint defense calls to which Del was invited but which he did not 

attend, they reminded Defendants that actual conflicts4existed and would need to be resolved, and 

thus encouraged Defendants to consider getting the advice of separate counsel. Id. ¶ 10.

Several Defendants chose to retain separate counsel, id. ¶ 11, and there are currently five 

other law firms representing Defendants, with the Court having approved substitution of counsel 

for several of the Defendants. Del did not find new counsel and did not sign on to the new terms 

in the Revised Retainer. In an email on June 12, Counsel informed Del of their intent to move to 

withdraw. Id. ¶ 13; Ferrari Reply Decl. ¶ 12, Ex. C, ECF No. 179-5. Del responded on June 16 

and told Counsel that he would not waive the assertion of defenses adverse to other Defendants, 

would not sign the Revised Retainer, and expected Counsel to continue representing him at their 

own expense. Ferrari Reply Decl. ¶ 12. Del never signed the Revised Retainer. Decl. of Ernest 

Del in Opp’n to Mot. to Withdraw (“Del Decl.”) ¶ 13, ECF No. 176. On June 25, Counsel 

reiterated their intent to file a motion to withdraw. Ferrari Decl. ¶ 15. 

Counsel filed their Motion to Withdraw on June 26. In addition to the conflict issue, 

Counsel contend that Del has “for the most part failed to meaningfully participate in the defense of 

these Actions, or to engage in most substantive communications with [them], since his deposition 

on September 6, 2019.” Id. ¶ 16. More specifically, Del did not participate in most joint defense 

calls, and refused to participate substantively in expert discovery and in mediation and other 

settlement efforts in 2020. Ferrari Reply Decl. ¶¶ 7, 11.

Del for his part strongly opposes the motion to withdraw. He asserts that before December 

2019 Counsel never represented to him that an actual conflict of interest had arisen between 

Defendants. Del Decl. ¶ 9. He disputes that he has failed to meaningfully participate in the 

4 Paragraphs 3 and 4 of the Revised Retainer, filed under seal, identify the actual conflict of 

interest among the Defendants.

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defense in these actions. Id. ¶ 16. He does not however dispute that he did not participate in joint 

defense calls since the beginning of the year. Id. ¶ 18. Del proffers that the true basis for 

Counsel’s attempted withdrawal is that monetary coverage provided to Defendants pursuant to 

Delivery Agent insurance policies is or soon will be fully depleted. Id. ¶¶ 6-7. In other words, he

suggests Counsel’s motion is really about money. 

III. MOTION TO SEAL

Pursuant to the Court’s Civil Local Rules, “[a] sealing order may issue only upon a request 

that establishes that the document, or portions thereof, are privileged, protectable as a trade secret 

or otherwise entitled to protection under the law.” N.D. Cal. Civil L.R. 79-5(b). The request must 

be narrowly tailored. Id. Counsel’s request seeks to seal three documents which are privileged 

and involve attorney-client communications. The request is narrowly tailored and is unopposed. 

The Court finds the documents are sealable and GRANTS the motion to seal. 

IV. MOTION TO WITHDRAW

A. LEGAL STANDARD

The Court’s Civil Local Rules authorize an attorney to withdraw as counsel of record if: 

(1) written notice has been given reasonably in advance to the client and all other parties in the 

action; and (2) the attorney obtains leave of Court. N.D. Cal. Civil L.R. 11-5(a). In this District, 

the conduct of counsel, including the withdrawal of counsel, is governed by the standards of 

professional conduct required of members of the State Bar of California. N.D. Cal. Civil L.R. 11-

4(a)(1); see Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of 

Professional Conduct to attorney withdrawal). The California Rules of Professional Conduct 

(“CRPC”) provide that “a lawyer shall not represent a client or, where representation has 

commenced, shall withdraw from the representation of a client if . . . the lawyers knows or 

reasonably should know that the representation will result in violation of these rules . . . .” CRPC 

1.16(a)(2) (emphasis added). Under CRPC 1.7(a), “[a] lawyer shall not, without informed written 

consent from each client . . . represent a client if the representation is directly adverse to another 

client in the same or a separate matter.” (emphasis added). CRPC 1.7(b) provides that “[a] lawyer 

shall not, without informed written consent from each affected client . . . represent a client if there 

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is a significant risk the lawyer’s representation of the client will be materially limited by the 

lawyer’s responsibilities to or relationships with another client . . . .” (emphasis added). And 

CRPC 1.16(b) provides that a lawyer may withdraw for several reasons, including that “the client 

by [] conduct renders it unreasonably difficult for the lawyer to carry out the representation 

effectively.” CRPC 1.16(b)(4) (emphasis added). Under these rules, “[t]he existence of a conflict 

of interest ordinarily constitutes a sufficient basis for withdrawing as counsel.” Page v. Stanley, 

2014 U.S. Dist. LEXIS 76363, at *4 (C.D. Cal. June 2, 2014) (citing Moore v. United States, 2008 

WL 1901322, at *2 (E.D. Cal. Apr. 28, 2008); Aceves v. Superior Court, 51 Cal. App. 4th 584, 

592 (1996); Cal. Rules of Prof. Conduct 3-700(C)(2) (1992)). Withdrawal is frequently permitted 

in this District where a conflict arises that would, among other things, require counsel to “decline 

to pursue [a certain] theory” on behalf of a client. Rearden LLC v. Crystal Dynamics, Inc., 2020 

WL 954846, at *2 (N.D. Cal. Feb. 27, 2020).

“Courts consider several factors when considering a motion for withdrawal, including: (1) 

the reasons counsel seeks to withdraw; (2) the possible prejudice that withdrawal may cause to 

other litigants; (3) the harm that withdrawal might cause to the administration of justice; and (4) 

the extent to which withdrawal will delay resolution of the case.” Atkins v. Bank of Am., N.A., 

2015 WL 4150744, at *1 (N.D. Cal. July 9, 2015) (citing Deal v. Countrywide Home Loans, 2010 

WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010)). “When addressing a motion to withdraw, the 

consent of the client is not dispositive.” Robinson v. Delgado, 2010 WL 3259384, at *2 (N.D. 

Cal. Aug. 18, 2010) (citing CE Resource, Inc. v. Magellan Group, LLC, 2009 WL 3367489, at *2 

(E.D. Cal. Oct.14, 2009)). Instead, the decision to permit counsel to withdraw is within the sound 

discretion of the trial court. United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). 

B. DISCUSSION

The Court will grant the motion to withdraw. As previously discussed, the California 

Rules of Professional Conduct prohibit attorneys from representing a client if there is a significant 

risk their representation of the client will be materially limited by the lawyer’s responsibilities to 

or relationships with another client. Counsel assert that with continued representation of Del, they

will be unable to assert certain positions or raise certain defenses on his behalf because of potential 

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conflicts with other Defendants, which amounts to a substantial risk that Counsel’s representation 

of Del will be materially limited. Ferrari Decl. ¶ 9; Mot. at 3, 4, 6. Del for his part doesn’t dispute 

that there is a conflict. His primary complaint is instead with the timing of Counsel’s attempted 

withdrawal, specifically that it is occurring this late in the game. Naturally, the further into 

litigation an attorney moves to withdraw, the greater the inconvenience, burden, and potential for 

prejudice for the party represented. But the apparent issue here is not that Counsel neglected to 

inform Del earlier of a conflict, but that, according to Counsel, the conflict didn’t become apparent 

until early 2020. It is therefore not relevant that, as Del contends, Counsel represented to Del in 

March 2017 that “we are not presently aware of any facts or circumstances that would suggest 

there is a conflict between your interests and those of the other defendants,” Del Decl. ¶ 9 (quoting 

a March 9, 2017 letter from Counsel), because according to Counsel, they weren’t aware of the 

potential conflict until much later, Ferrari Reply Dec. ¶ 3. And the 2017 Representation 

Agreement, which Del signed, provides that “in the event that a conflict of interest arises 

regarding [Counsel’s] multiple representation of you and the other defendants, then we may 

withdraw from representing you.” Del is an attorney with years of experience. He no doubt 

understood the terms of that Agreement, and as an attorney he no doubt is aware that a conflict of 

interest between clients in the same lawsuit generally precludes joint representation.

Also relevant is the fact that Del still refuses to sign the Revised Waiver. Two other 

Defendants have, and Counsel have professional responsibilities to those Defendants also and has 

indicated that they will continue to represent them. Ferrari Reply Decl. ¶ 9. Counsel cannot 

ethically represent Del along with the other jointly represented Defendants absent Del’s agreement 

to waive the existing conflicts and agree that Counsel will not make certain arguments or assert 

certain defenses. By demanding that Counsel continue to represent him while refusing to sign the 

waiver as the other Defendants have, Del is insisting that Counsel continue to represent him and 

assert defenses that might be detrimental to Counsel’s other clients. This puts Counsel in an 

untenable situation. 

Del argues that Counsel’s withdrawal will result in significant immediate and long-term 

prejudice to him. Del Decl. ¶ 19. More specifically, he argues it will be a substantial financial 

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burden and potentially impossible to bring a new lawyer up to speed in order to participate in 

upcoming deadlines. Id. “A lawyer violates his or her ethical mandate . . . by withdrawing at a 

critical point and thereby prejudicing the client’s case.” Ramirez v. Sturdevant, 21 Cal. App. 4th 

904, 915 (1994) (citation omitted). Before withdrawal is permitted, counsel must comply with 

CRPC 1.16(d), which provides that an attorney shall not withdraw from employment until she has 

taken steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving 

sufficient notice to the client to allow time for employment of other counsel, complying with Rule 

1.16(e) (regarding the return of all client materials and property), and complying with all other 

applicable laws and rules. El Hage v. U.S. Sec. Assocs., Inc., 2007 WL 4328809, at *1 (N.D. Cal. 

Dec. 10, 2007). Further, “[w]hen withdrawal by an attorney from an action is not accompanied by 

simultaneous appearance of substitute counsel or agreement of the party to appear pro se, leave to 

withdraw may be subject to the condition that papers may continue to be served on counsel for 

forwarding purposes . . . unless and until the client appears by other counsel or pro se.” N.D. Cal. 

Civil L.R. 11-5(b). 

The Court finds that Counsel gave sufficient written notice of their intent to withdraw and 

that sufficient time has passed during which Del has been on notice and had opportunity to find 

other counsel. Also, there is sufficient time remaining for Del to obtain separate counsel and for 

that counsel to participate meaningfully in this litigation. As of now, dispositive motions are not 

due until approximately 80 days out, and there is no trial date currently set and there will be no 

trial before the end of the year. Courts in California have allowed attorneys to withdraw for 

similar reasons at later days than this. Edge Sys. LLC v. Image Microderm Inc., 2019 U.S. Dist. 

LEXIS 143253, *5 (C.D. Cal. Apr. 4, 2019) (“Although the parties are now in the midst of 

discovery, trial is not scheduled until September 2019 and withdrawal at this point allows 

Defendant adequate time to retain new counsel and get new counsel up to speed before the trial 

date.”) (citing Saemie Corp. v. Coddington, 2011 WL 4964834, at *2 (C.D. Cal. Oct. 19, 2011) 

(granting withdrawal where trial was “almost six months from the date [] Motion was filed”); 

Vahora, 2018 U.S. Dist. LEXIS 153211 (granting withdrawal after pre-trial conference and 

motions in limine where plaintiff was unwilling to pay counsel their fees and counsel was unable 

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to effectively communicate or collaborate with Plaintiff); Anhing Corp. v. Thuan Phong Co., 2014 

WL 12591456, at *2 (C.D. Cal. Dec. 2, 2014) (granting withdrawal two weeks before trial); 

Pension Plan v. Yubacon Inc, 2014 WL 1101659, at *2 (N.D. Cal. Mar. 18, 2014) (granting 

withdrawal to defendants’ counsel two days before defendants’ deadline to file opposition to 

motion for summary judgment but granting a 30-day continuance for defendants to obtain new 

counsel). 

V. CONCLUSION

For the reasons stated above, the Court GRANTS Counsel’s Motion to Withdraw. 

However, because Del has not consented to the withdrawal and no substitution of counsel has 

been filed on his behalf, the motion is granted on the condition that all papers from the Court and 

from other parties shall continue to be served on Counsel for forwarding purposes until a 

substitution of counsel is filed as provided by Civil Local Rule 11-5(b). For all such documents, 

Counsel shall e-file proof of service upon Del. Del shall file a substitution of counsel by no later 

than August 21, 2020. No chambers copy is required. 

IT IS SO ORDERED.

Dated: July 22, 2020

THOMAS S. HIXSON

United States Magistrate Judge

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