United States District Court, D. New Jersey
High Crest Functional Medicine, LLC, et al.
Horizon Blue Cross Blue Shield of New Jersey, Inc., et al.
LETTER OPINION & ORDER
the Court is the motion of Clinton Brook & Peed to
withdraw as counsel for plaintiffs. (ECF No. 158). The motion
is GRANTED for the reasons set forth below.
commenced this action in December 2015 and the defendants
filed Answers. (ECF Nos. 1, 10, 11, 17). The Court entered a
discovery schedule in May 2016, setting a fact discovery
deadline of January 31, 2017. (ECF No. 16). The completion of
discovery under the initial schedule was delayed, however, by
the filing of an Amended Complaint and subsequent motions to
dismiss and for judgment on the pleadings. (ECF Nos. 19, 57,
62, 91, 92, 93). After District Judge Madeline Cox Arleo
issued rulings on those motions (ECF Nos. 117, 132), this
Court entered an Amended Scheduling Order extending the fact
discovery deadline to December 20, 2017, and the expert
discovery deadline to March 15, 2018. (ECF No. 137).
September 6, 2017, plaintiffs counsel moved to withdraw
pursuant to New Jersey Disciplinary Rule of Professional
Conduct ("RPC") 1.16. (ECF No. 158). The motion did
not disclose the factual basis for the proposed withdrawal,
contending that doing so would reveal information protected
by the attorney-client privilege. (Id.). During a
telephonic conference held before the undersigned on
September 8, 2017, the Court directed plaintiffs counsel to
file further factual support for the motion in
camera. Plaintiffs counsel accordingly filed a
supporting declaration in camera on September 11,
2017. They also filed a supplemental memorandum of law
publicly, reiterating that withdrawal was appropriate under
RPC 1.16, but that counsel could not disclose the factual
basis for the motion. (ECF No. 160). Plaintiffs were served
with the motion (ECF No. 163) and have not objected to their
Horizon Blue Cross Blue Shield of New Jersey
("Horizon") responded to the motion on September
18, 2017, asserting that the Court should require plaintiffs
counsel to disclose to the parties the reasons for withdrawal
provided in the in camera declaration, to the extent
that they are outside the scope of the attorney-client
privilege, so that Horizon may determine whether to oppose
the motion. (ECF No. 161). Horizon also requests that the
Court not permit plaintiffs counsel to withdraw until
plaintiffs respond to long-outstanding discovery requests.
Propriety of the In Camera Declaration and
Horizon's Request for More Information
initial matter, the Court finds that plaintiffs counsel's
submission of a declaration supporting the motion to withdraw
in camera, as the Court directed, was proper.
Whether to employ in camera procedures in
"circumstances involving sensitive information" is
within the district court's discretion. Am. Civil
Liberties Union of N.J. v. F.B.I., 733 F.3d 526, 534 (3d
Cir. 2013). Courts in this District have allowed an attorney
moving to withdraw to submit documents providing the reasons
for withdrawal in camera if those reasons concern
information protected by attorney-client privilege. See,
e.g., Rusinow v. Kamara, 920 F.Supp. 69, 72 (D.N.J.
is correct that under certain circumstances courts have
disclosed portions of in camera declarations not
protected by the attorney-client privilege. See George v.
Siemens Indus. Automation, Inc., 182 F.R.D. 134 (D.N.J.
1998). For instance, the court in George concluded
that it had an obligation to disclose one paragraph of
plaintiffs counsel's in camera affidavit to
opposing counsel because it contained material that was
relevant, not privileged, and "essential to preparation
of the opposing party's case." Id. at 142.
The George court further concluded that even
assuming the material was covered by the work product
doctrine, the "[d]efendants undoubtedly need [the
material] to prepare an adequate defense" and any action
by the Court short of disclosing the information would
"result in the Court being a party to the perpetration
of a fraud." Id. at 142-43. Under less extreme
circumstances, however, other courts have refused to disclose
information submitted in support of a motion to withdraw that
the opposing side has "no legitimate interest" in
reviewing. Team Obsolete Ltd. v. A.H.R.M.A. Ltd.,
464 F.Supp.2d 164, 165 (E.D.N.Y. 2006).
the Court has reviewed plaintiffs counsel's in
camera declaration carefully and concludes that it
contains information protected by the attorney-client
privilege and there is nothing to indicate that the
information falls under the crime-fraud exception. The
information in section A of the declaration, which forms the
primary basis for the Court's decision to grant the
motion, includes confidential client communications. Section
B provides an alternate basis for withdrawal: plaintiffs'
failure to pay attorney's fees. This section necessarily
includes discussions of plaintiffs counsel's fee
arrangements with plaintiffs. To the extent it does not
discuss the nature of services rendered, that information is
not privileged. See Id. (court determined it had
obligation to inform plaintiffs that a failure to pay legal
fees was the basis for withdrawal); see also Montgomery
Cty. v. MicroVote Corp., 175 F.3d 296, 304 (3d Or. 1999)
("The attorney-client privilege does not shield fee
arrangements."); In re Grand Jury
Investigation, 631 F.2d 17, 19 (3d Cir. 1980)
(explaining "general rule" that attorney-client
privilege does not protect fee information absent strong
probability that disclosure would implicate client in
criminal activity for which client sought legal advice);
Stanziale v. Vanguard Info-Solutions Corp., Civ. A.
No. 06-2208 (MBK), 2008 WL 1808318, at *2 (Bankr. D.N.J. Apr.
21, 2008) ("[F]ees paid for legal work and the general
nature of legal work performed do not constitute a
confidential communication, but . . . specific descriptions
of services necessarily intrude upon the area of confidential
communications."). But nor are the details of the fee
arrangement between plaintiffs and their counsel relevant to
Horizon's counterclaims or defenses. Therefore, Horizon
has no legitimate interest in such information and the Court
will not order its disclosure. See Team Obsolete
Ltd., 464 F.Supp.2d at 165, 166 (denying request to
unseal affidavit submitted in support of defense
counsel's motion to withdraw because although the court
had an obligation to inform plaintiffs that a fee dispute was
the basis for withdrawal, plaintiffs had "no legitimate
interest in learning the specifics of this dispute");
Patterson v. CBS Inc., Civ. A. No. 94-2562, 1996 WL
724697, at *1 (S.D.N.Y. Dec. 16, 1996) (sealing ex
parte information submitted in support of plaintiffs
motion to withdraw because defendants had "no legitimate
reason to learn the particulars of the dispute" between
plaintiff and his attorney).
Analysis of Motion to Withdraw
Civil Rule 102.1 provides that "[u]nless other counsel
is substituted, no attorney may withdraw an appearance except
by leave of Court." Pursuant to Local Civil Rule 103.1,
the New Jersey Rules of Professional Conduct govern attorneys
practicing in the District of New Jersey. L. Civ. R. 103.1.
RPC 1.16 lists the circumstances under which an attorney may
withdraw from representation of a client. Whether to grant a
motion to withdraw is within the Court's discretion.
Cuadra v. Univision Commc'ns, Inc., Civ. A. No.
09-4946 (JLL), 2012 WL 1150833, at *5 (D.N.J. Apr. 4, 2012).
The general criteria by which the Court typically considers
such an application are "(1) the reasons why withdrawal
is sought, (2) the prejudice withdrawal may cause to
litigants, (3) the harm withdrawal might cause to the
administration of justice and (4) the degree to which
withdrawal will delay resolution of the case."
Haines v. Liggett Grp., Inc., 814 F.Supp. 414, 423
(D.N.J. 1993); see also TBI Unlimited, LLC v. Clear Cut
Lawn Decisions, LLC, Civ. A. No. 12-3355 (RBK)(JS), 2014
WL 12616940, at *1 (D.NJ. Nov. 6, 2014). Nevertheless, and as
the Third Circuit has explained, there is no required list of
factors that a district court must consider in deciding a
motion to withdraw, which is necessarily fact-specific.
See Ohntrup v. Makina Ve Kimya Endustrisi Kurumu,
760 F.3d 290, 295 (3d Cir. 2014) ("[T]here is no
multi-factor test that a district court must apply to decide
a motion for attorney withdrawal. Rules regarding attorney
withdrawal are necessarily general because of the
context-laden nature of such determinations. The interests to
be considered will vary widely from case to case.").
Court, in the exercise of its discretion, grants plaintiffs
counsel's motion to withdraw. Upon review of the in
camera declaration and the motion papers filed
electronically, the Court is satisfied that the counsel's
withdrawal is warranted under RPC 1.16. Moreover, plaintiffs
have not opposed the motion and Horizon has not provided a
basis to deny the motion. Although granting the motion will
require the entity plaintiffs to appear by new counsel and
may slightly delay discovery, the reasons for withdrawal
outweigh any potential prejudice to the litigants or delay in
resolving the case. This case is not yet through discovery or
scheduled for trial. Consequently, should new counsel appear
for plaintiffs, there will be time for new counsel to
complete discovery. Accordingly, the circumstances of this
case favor withdrawal.
Court denies Horizon's request for an order preventing
plaintiffs counsel from withdrawing until plaintiffs respond
to outstanding discovery requests. As discussed previously,
the persuasive reasons for withdrawal provided in plaintiffs
counsel's declaration outweigh the potential prejudice to
Horizon caused by a delay in discovery. Given the nature of
the withdrawal, preventing plaintiffs counsel from
withdrawing until they prepare responses to outstanding
discovery requests would be inappropriate. Accordingly, the
Court will not delay in granting the motion to withdraw.
for the foregoing reasons, the motion to withdraw is
GRANTED and it is hereby
ORDERED that Plaintiffs counsel shall serve
a copy of this Order upon its clients by overnight and
regular mail within three (3) business days. Counsel's
withdrawal is not effective until they have provided contact
information (address, telephone number, and email address)