Kingdom v. Jackson

896 P.2d 101, 78 Wash. App. 154
CourtCourt of Appeals of Washington
DecidedJune 13, 1995
DocketNo. 16119-2-II
StatusPublished
Cited by13 cases

This text of 896 P.2d 101 (Kingdom v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kingdom v. Jackson, 896 P.2d 101, 78 Wash. App. 154 (Wash. Ct. App. 1995).

Opinion

Morgan, J.

Attorney Paul N. Luvera, Jr.1 obtained discretionary review of the trial court’s denial of his motion to withdraw as counsel for plaintiff Beverly Jennifer Ann Kingdom. We reverse.

On March 21, 1989, a doctor performed surgery on Kingdom. Soon thereafter, Kingdom acquired an infection that allegedly left her with tissue loss and scarring.

Kingdom asked Luvera to represent her. He agreed, and they entered into a written agreement stating in part:

7. Withdrawal’. The attorney reserves the right at attorney’s [156]*156sole discretion to terminate the attorney-client relationship at any time. Should the attorney elect to terminate that relationship, the attorney shall be reimbursed for all costs advanced and shall be paid a reasonable fee for services rendered to that date.

Luvera contacted a forensic surgeon who gave a preliminary opinion of negligence. Thus, on April 20, 1990, Luvera filed a medical malpractice action on Kingdom’s behalf. Trial was set for October 19, 1992.

Luvera and opposing counsel conducted discovery in late 1990 and early 1991. Then, by letter dated May 16, 1991, Luvera notified Kingdom that he no longer desired to pursue the case. He wrote, "It is our recommendation at this point that you find another attorney to assume responsibility for the case”. He offered assistance in finding substitute counsel, and he referred the file to several other attorneys for evaluation. None would take the case.

Eight months later, the matter of Kingdom’s representation remained unresolved. Thus, on February 4, 1992, Luvera sent a notice of withdrawal to the court and both parties. Kingdom filed an objection, and Luvera moved for an order permitting withdrawal. On April 10, 1992, the trial court ruled it would grant such an order — but only "upon substitution of counsel for plaintiff’.2

Luvera moved for reconsideration, which the trial court denied on June 5, 1992. The trial court stated:

I can’t leave her pro se, and I can’t expose her to a motion to dismiss because she is pro se. . . . [I]f she [had] another attorney to represent her, that would be another thing!3]

Luvera then sought discretionary review, which was granted by a commissioner of this court.

CR 71 deals with the withdrawal of counsel. It differentiates between court-appointed counsel and retained counsel. CR 71(b), (c). Here, we are concerned only with retained counsel in a civil case.

[157]*157CR 71(c) provides that retained counsel in a civil case may withdraw in the following manner:

(1) Notice of Intent To Withdraw. The attorney shall file and serve a Notice of Intent To Withdraw on all other parties in the proceeding. The notice shall specify a date when the attorney intends to withdraw, which date shall be at least 10 days after the service of the Notice of Intent To Withdraw. The notice shall include a statement that the withdrawal shall be effective without order of court unless an objection to the withdrawal is served upon the withdrawing attorney prior to the date set forth in the notice. If notice is given before trial, the notice shall include the date set for trial. The notice shall include the names and last known addresses of the persons represented by the withdrawing attorney, unless disclosure of the address would violate the Rules of Professional Conduct, in which case the address may be omitted. If the address is omitted, the notice must contain a statement that after the attorney withdraws, and so long as the address of the withdrawing attorney’s client remains undisclosed and no new attorney is substituted, the client may be served by leaving papers with the clerk of the court pursuant to rule 5(b)(1).
(2) Service on Client. Prior to service on other parties, the Notice of Intent To Withdraw shall be served on the persons represented by the withdrawing attorney or sent to them by certified mail, postage prepaid, to their last known mailing addresses. Proof of service or mailing shall be filed, except that the address of the withdrawing attorney’s client may be omitted under circumstances defined by subsection (c)(1) of this rule.
(3) Withdrawal Without Objection. The withdrawal shall be effective, without order of court and without the service and filing of any additional papers, on the date designated in the Notice of Intent To Withdraw, unless a written objection to the withdrawal is served by a party on the withdrawing attorney prior to the date specified as the day of withdrawal in the Notice of Intent To Withdraw.
(4) Effect of Objection. If a timely written objection is served, withdrawal may be obtained only by order of the court.

Nothing in CR 71 "defines the circumstances under which a withdrawal might be denied by the court”. CR [158]*15871(a). Nor is there a Washington case on point. Thus, we look to cases from other jurisdictions.

Withdrawal is a matter addressed to the discretion of the trial court. Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422 (D.N.J. 1993); United States v. Cannistraro, 799 F. Supp. 410, 419 (D.N.J. 1992); Streetman v. Lynaugh, 674 F. Supp. 229, 234 (E.D. Tex. 1987). An appellate court will reverse only for abuse of discretion. Silva v. Perkins Mach. Co., 622 A.2d 443, 444 (R.I. 1993); State ex rel. Wilke v. Rush, 814 S.W.2d 687, 689 (Mo. App. 1991); Lamb v. Groce, 95 N.C. App. 220, 222, 382 S.E.2d 234, 236 (1989).

In exercising its discretion, a trial court should consider all pertinent factors. Some are listed in Rules of Professional Conduct 1.15.4 Others are found in case law. They include whether withdrawal will delay trial or otherwise interfere with the functioning of the court, Mervan v. Dar[159]*159rell, No. CIV.A.93-4552, 1994 WL 327626, at *2 (E.D. Pa., Jul. 8, 1994); American Packaging Corp. v. Tommy Lasorda Foods, Inc., No. CIV.A. No. 88-1130, 1988 WL 130672 at *2 (E.D. Pa., Dec. 5, 1988); Fisher v. State, 248 So.2d 479, 486 (Fla. 1971), whether the client has had or will have an opportunity to secure substitute counsel, Haines, 814 F. Supp. at 425; Discovery Sys., Inc. v. Chanotte, Inc., No. 88 CIV. 2872 (CSH), 1991 WL 130941, at *2 (S.D.N.Y., Jul. 10, 1991), whether the client has sufficient prior notice of the lawyer’s intent to withdraw, Lamb, 382 S.E.2d at 236, whether the client lacks the ability to prove a prima facie case, Cohen v. Tzimas, 135 Misc.2d 335, 336-37, 515 N.Y.S.2d 173, 174 (N.Y. Sup. Ct. 1987); Rindner v. Cannon Mills, Inc., 127 Misc.2d 604, 606, 486 N.Y.S.2d 858, 860 (N.Y. Sup. Ct. 1985), whether the client has failed to pay the lawyer’s fees, In re Meyers, 120 B.R. 751, 753 (Bankr. S.D.N.Y. 1990); Max-um Fin. Holding Corp. v. Moya Overview, Inc., CIV.A. No. 88-6345, 1990 WL 136380, at *2 (E.D. Pa. Sept. 19, 1990), whether the client has failed to cooperate with the lawyer, Kolacek v. Gemexco Trading Inc., No.

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Cite This Page — Counsel Stack

Bluebook (online)
896 P.2d 101, 78 Wash. App. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kingdom-v-jackson-washctapp-1995.