                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0335n.06

                                          No. 14-2614                                 FILED
                                                                                May 07, 2015
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

MADISON KING; MATT STEWARD, next               )
friend of K.S.; TOM KOSTEN, next friend        )
of D.K.; JOHN DOE, next friend of Jane         )
Doe,                                           )
                                               )
       Plaintiffs-Appellees,                   )
                                               )
v.                                             )
                                               )
CHAD CURTIS,                                   )
                                               )
                                                   ON APPEAL FROM THE UNITED
       Defendant,                              )
                                                   STATES DISTRICT COURT FOR THE
                                               )
                                                   WESTERN DISTRICT OF MICHIGAN
and                                            )
                                               )
                                                                     OPINION
LAKEWOOD PUBLIC SCHOOLS;                       )
LAKEWOOD PUBLIC SCHOOLS BOARD                  )
OF EDUCATION; UNKNOWN                          )
PART(Y)(IES), named as James Roes 1-10,        )
                                               )
       Defendants-Appellees,                   )
                                               )
WARNER NORCROSS & JUDD, LLP,                   )
                                               )
       Interested Party-Appellant.             )



       BEFORE:        SILER, COOK, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. The firm representing defendant Chad Curtis,

Warner Norcross & Judd, LLP, filed a motion in district court seeking to withdraw as counsel

soon after Curtis indicated that he would not pay the firm for its services. A magistrate judge

denied the motion, and the district court denied Warner Norcross’s objections to the magistrate’s
No. 14-2614
King v. Curtis

order. This interlocutory appeal raises a single issue: whether the district court abused its

discretion by upholding the denial of Warner Norcross’s motion to withdraw. Because the rules

of professional conduct permit withdrawal under these circumstances, and withdrawal will not

result in severe prejudice to any party in the proceedings, we find that the district court’s order

was an abuse of its discretion. We therefore REVERSE the district court’s order denying

Warner Norcross’s objections to the magistrate judge’s order and REMAND the case to the

district court for further proceedings.

                                          I. BACKGROUND

       In April 2014, Plaintiffs filed this case alleging that Curtis sexually assaulted them while

they were students at Lakewood High School and he was a substitute teacher working in the

school’s weight room. Before the complaint was filed, a jury had convicted Curtis of six charges

of criminal sexual conduct involving Plaintiffs, and he is now serving a 7 to 15 year sentence. In

this related civil case, Plaintiffs allege battery and intentional infliction of emotional distress

against Curtis, a Title IX claim against defendant Lakewood Public Schools and defendant

Lakewood Schools Board of Education, and a claim for the violation of Plaintiffs’ constitutional

rights under 42 U.S.C. § 1983 against Lakewood Public Schools, Lakewood Public Schools

Board of Education, and several administrators (collectively the “Lakewood Defendants”).

       Curtis retained Warner Norcross to represent him in the litigation. Warner Norcross

answered the complaint, attended the initial case scheduling conference, and served Curtis’s

initial disclosures. Discovery began in July 2014 and Rule 26(a) disclosures were completed in

September 2014.       A July 2014 case management order set forth deadlines for various

components of the litigation, and included a November 20, 2014 deadline for requesting a pre-

motion conference, which the district court routinely requires before the filing of any dispositive


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King v. Curtis

motion. In anticipation of preparing a motion for summary judgment, the Lakewood Defendants

noticed Plaintiffs’ depositions with time to spare before the November deadline.

       On September 25, 2014, Curtis met with Warner Norcross and indicated that he would

not pay Warner Norcross’s fees. Warner Norcross avers that it then discussed with Curtis the

potential consequences of choosing to proceed pro se. On October 8, 2014, Curtis notified

Warner Norcross that he would represent himself, and in a subsequent submission to the court,

Curtis indicated that he had “discharged [his] lawyers.” R. 54-1, PageID 247.

       On October 15, 2014, Curtis (through Warner Norcross) filed a Motion to Adjourn

Depositions and Reset Deadlines and for Withdrawal of Counsel, which the court referred to the

magistrate judge in accord with 28 U.S.C. § 636(b)(1)(A). Plaintiffs filed a response to the

motion consenting to the substitution of Warner Norcross with other counsel, but opposing

Warner Norcross’s withdrawal if it would result in Curtis proceeding pro se. The response

argued that Plaintiffs would be severely prejudiced and irreparably harmed if Curtis were to

conduct his own discovery and participate in the girls’ depositions because they would face “the

very strong likelihood of further traumatization and intimidation” from Curtis. The Lakewood

Defendants took no position on the withdrawal of Warner Norcross, except to the extent that the

withdrawal would require altering the court’s July case management order. The magistrate judge

noticed the motion for a hearing on November 7, 2014.

       During October, Plaintiffs and the Lakewood Defendants were engaged in an ongoing

dispute over the scheduling of Plaintiffs’ depositions, which led Plaintiffs to file a motion to

quash the deposition subpoenas the Lakewood Defendants had served on them, adjourn the

depositions, for a protective order, and for sanctions against the Lakewood Defendants. The




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King v. Curtis

Lakewood Defendants in turn filed a motion to compel discovery and for sanctions against

Plaintiffs.

        The magistrate judge considered all three motions at the November 7 hearing, then on

November 17, 2014 entered an order (1) indicating that Plaintiffs’ depositions would be

completed by January 15, 2015, (2) extending the pre-motion conference request deadline to

February 7, 2015, (3) denying sanctions, and (4) denying Warner Norcross’s request to withdraw

as Curtis’s counsel without prejudice to its ability to renew the motion following a decision on

the Lakewood Defendants’ anticipated dispositive motion.         The following day, Plaintiffs

requested a pre-motion conference, proposing a motion for partial summary judgment against

Defendant Curtis on the issue of liability. Warner Norcross, still representing Curtis, filed a

response in opposition to Plaintiffs’ request.

        On November 25, Warner Norcross filed objections to the magistrate judge’s order

denying it leave to withdraw as Curtis’s counsel, and a motion for expedited determination, both

of which the district court denied.      This interlocutory appeal followed.   Warner Norcross

subsequently filed a motion to stay the litigation pending the result of its appeal, which the

district court denied. A panel of this court, however, reversed the district court and granted a

stay pending this court’s resolution of the merits of Warner Norcross’s motion to withdraw.

        Plaintiffs opted not to file a brief in this appeal, and the Lakewood Defendants’ brief

expressed no opinion on the motion to withdraw, but argued that the district court acted within

its discretion in denying Warner Norcross’s motion.




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King v. Curtis

                                         II. ANALYSIS

A. Jurisdiction over the Interlocutory Appeal and Standard of Review

       This court has jurisdiction over interlocutory orders that “(1) conclusively determine a

disputed question; (2) resolve an important issue apart from the merits of the action; and (3) are

effectively unreviewable on appeal from final judgment.” Brandon v. Blech, 560 F.3d 536, 537

(6th Cir. 2009) (citing Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276

(1988)). “An order compelling an attorney to continue work without compensation is just the

sort of order the doctrine contemplates: it conclusively determined the withdrawal question, is

unrelated to the merits, cannot be rectified after a final judgment, and may impose significant

hardship.” Brandon, 560 F.3d at 537.

       We review the denial of a motion to withdraw as counsel under the abuse of discretion

standard. Id.

B. Application

       Both this circuit and others taking up the issue of attorney withdrawal for failure to pay

fees have turned to the rules governing professional conduct for guidance. Id. at 538 (collecting

cases). Here, as in Brandon, the pertinent rules “speak with a permissive tone.” See id.

Attorneys practicing in the United States District Court for the Western District of Michigan are

subject to the Michigan Rules of Professional Conduct. W.D. Mich. LCivR 83.1(j). Under the

Michigan Rules,

       a lawyer may withdraw from representing a client if withdrawal can be
       accomplished without material adverse effect on the interests of the client, or if:

       ...

       (4) the client fails substantially to fulfill an obligation to the lawyer regarding the
       lawyer’s services and has been given reasonable warning that the lawyer will
       withdraw unless the obligation is fulfilled;

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No. 14-2614
King v. Curtis


       (5) the representation will result in an unreasonable financial burden on the
       lawyer or has been rendered unreasonably difficult by the client; or

       (6) other good cause for withdrawal exists.

Mich. R. Prof’l Conduct 1.16(b). The rule further provides that “[w]hen ordered to do so by a

tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the

representation.” Id. at 1.16(c). This rule mirrors the language of the corresponding ABA Model

Rule of Professional Conduct. Mod. R. Prof’l Conduct 1.16(b). As with the rules in Brandon,

“while these rules stop short of guaranteeing a right to withdraw, they confirm that withdrawal is

presumptively appropriate where the rule requirements are satisfied.” Brandon, 560. F.3d at 538.

       Warner Norcross met the criteria for withdrawal under the Rules. Curtis’s failure to pay

was a clear failure to fulfill an obligation to the firm regarding its services. And Curtis was

given reasonable warning that Warner Norcross would withdraw if he did not meet his

obligation: the firm explained to Curtis the consequences of proceeding pro se on September 25,

when he first said he would not pay, then withdrew about two weeks later, after Curtis notified it

that he would represent himself.

       Nonetheless, even where counsel meets the requirements for withdrawal under the

applicable rules, it is appropriate to deny a motion to withdraw under certain circumstances.

Brandon noted that there are “several occasions when a district court ought to prohibit counsel

from withdrawing” and identified two in particular: situations where counsel has engaged in

“strategically-timed or coercive behavior, like waiting until a client is ‘over a barrel’ before

demanding payment” and situations where withdrawal “would work severe prejudice on the

client or third parties.” Id. at 538. There is no indication that Warner Norcross’s withdrawal was

“strategically-timed.” The record indicates that the firm discussed withdrawal with Curtis as


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King v. Curtis

soon as he mentioned that he would not pay, and attempted to withdraw two weeks later when

Curtis confirmed that he would not pay and would instead represent himself. Here, the parties

focus on the second scenario that Brandon contemplates, arguing to the magistrate judge about

whether withdrawal would amount to “severe prejudice” to any party.

       Though Warner Norcross called the court’s attention to Brandon and its “severe

prejudice” standard when it first moved the court to withdraw as counsel, the magistrate judge’s

order denying that relief did not expressly address whether withdrawal would result in such

prejudice. Rather, the magistrate judge found that: (1) in light of the pending “rather tight”

deadlines and the court’s interest in a timely and efficient administration of justice, the motion

could properly be denied; (2) because Plaintiffs’ complaint “involves allegations of sexual abuse

of the minor plaintiffs by Curtis,” it was in Plaintiffs’ “best interest to have defendant Curtis

represented at least through their depositions”; (3) Curtis would be prejudiced because his

“incarcerated status and alleged inability to pay” made it unlikely that he would be able to retain

other counsel; and (4) “if the school district defendants are successful on their motion to dismiss

this case might be effectively over.” The magistrate judge denied Warner Norcross’s motion

without prejudice to renewal “following any decision on the school district defendants’

anticipated dispositive motion.” The magistrate’s November 17 order imposed a deadline of

January 15 for completion of Plaintiffs’ depositions, and February 7, 2015 for the pre-motion

conference.

       We do not find that the deposition deadline two months in the future and the pre-motion

conference deadline three weeks after that were tight enough to warrant the denial of Warner

Norcross’s motion to withdraw. This court has quoted with approval a decision permitting

withdrawal when the case is “clearly in the noncritical stage,” as it “has not yet proceeded


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King v. Curtis

beyond discovery.” Brandon, 560 F.3d at 538 (quoting Silva v. Perkins Mach. Co., 622 A.2d

443, 444 (R.I. 1993)).     Though the district court noted that an attempt to withdraw when

discovery deadlines were looming might have been seen as “opportunistic,” see Fidelity Nat’l

Title Ins. Co. of New York v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537, 541 (7th Cir. 2002)

(dictum), that is hardly the case here. Warner Norcross attempted to withdraw at its earliest

opportunity, and proposed extending discovery deadlines to accommodate Curtis. Though the

magistrate judge’s order did push back the deadlines, it did not permit the firm to exit.

       If a routine deadline two months away were sufficient to warrant denial of a firm’s

motion to withdraw from a case still in the discovery phase, it would be difficult to find an

opportune time to withdraw absent an indefinite halt to the litigation. Discovery is followed

closely by dispositive motions, settlement talks, additional pretrial procedures, then numerous

trial deadlines involving experts, exhibits, witnesses, evidentiary motions, and so forth. The time

at which Warner Norcross sought withdrawal here could prove in retrospect to be one of the least

disruptive times in the course of the litigation.

       We also fail to see how Warner Norcross’s withdrawal would cause severe prejudice to

Plaintiffs. It is undeniable that permitting Curtis to participate directly in their depositions is

likely to cause them stress. The district court, however, has already mitigated that by allowing

Curtis to be present at the depositions by video but not in person. Allowing Curtis’s counsel to

withdraw, moreover, would leave Plaintiffs in the position they would have found themselves

had Curtis chosen at the outset to represent himself, as he had the right to do.            Such a

development cannot constitute the severe prejudice contemplated in Brandon.

       It is difficult, too, to see how Warner Norcross’s withdrawal would constitute severe

prejudice to Curtis himself. Whether or not Curtis’s decision to proceed pro se was based on


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King v. Curtis

financial necessity, he does not have a right to have counsel free of charge in this civil case.

And, as Brandon noted, the fact that withdrawal would leave a client without representation—

absent something more—does not constitute severe prejudice. Id. at 538. We recognize that pro

se litigants impose a burden on the courts and that clients are usually better off if represented by

counsel. But if that alone were a sufficient basis to deny leave to withdraw, the presumption

permitting withdrawal would become meaningless. Clients, moreover, would also have an

incentive to stop paying attorney fees based on the assumption that the court would ultimately

compel counsel to represent them anyway.

       Though the magistrate judge did not describe the prejudice that would result from

withdrawal as “severe,” the district court found that there was prejudice “sufficient to deny the

request,” based primarily on timing. We do not require courts to use Brandon’s magic words,

“severe prejudice,” but a denial based on prejudice to the parties must identify prejudice that

upon review may be classified as severe. The prejudice identified here appears to be comparable

to the inconvenience that exists in any case where counsel withdraws or where the defendant

never retained counsel in the first instance.

       When determining whether the prejudice to the parties is sufficiently severe to justify

denial of a presumptively permissible motion to withdraw, it is appropriate to consider the level

of prejudice in light of the “weighty policy reasons to allow withdrawal.” Brandon, 560 F.3d at

538.   The orders here bound the firm to represent Curtis until a ruling on an anticipated

dispositive motion which was at that time likely three or more months away, even though Curtis

had breached his agreement to pay.         During that period, Warner Norcross would remain

responsible for deposing the victims, completing discovery, and defending motion practice,

without certainty that it would be released from the litigation even after rulings on the dispositive


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King v. Curtis

motions. Given the insufficiency of the concerns about prejudice and the clear injury that

Warner Norcross would suffer if forced to engage in substantial pro bono legal work on Curtis’s

behalf, we conclude that the district court abused its discretion when upholding the magistrate

judge’s denial of Warner Norcross’s motion to withdraw as counsel.

                                     III. CONCLUSION

       We REVERSE the district court’s order denying Warner Norcross’s motion to withdraw

and REMAND the case to the district court for further proceedings.




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