Court-Permitted Withdrawal of Appearance in Civil Action
By Jeffrey P. Lewis

As a general practice an attorney can withdraw his or her appearance when no other attorney has also appeared for the client, other counsel is appearing at the same time as the withdrawal or by leave of court, which is by no means automatically granted. Under case law the trial judge has discretion to grant leave for counsel to withdraw based on several factors. A recent case reminds us that sometimes the court will not grant leave even when it should. However, there are steps that one can take, both at the inception of the representation and later, to make the most compelling case for withdrawal, should it become necessary.

In Robbins v. Legacy Health System Inc., 311 P.3d 96 (Wash.App. 2013), counsel represented clients in a medical malpractice action in the state of Washington. The engagement letter contained terms that included a provision that clients were responsible for “[a]ll reasonable costs and expenses associated with pursuing the matter,” although counsel was given discretion to advance some or all of the costs. The engagement letter also provided that “[a]ttorney may withdraw from representation of Client(s) (a) with Client(s)’ consent, (b) upon court approval, or (c) if no court action has been filed, for good cause and upon reasonable notice to Client(s). …” It further provided that “[a]bandonment of the claim by the Client may occur if the Client breaches this contract, or materially fails to cooperate with the office or the contractual provisions herein. In the event the Attorney feels that she is required to withdraw because of such, then such is considered a forced termination.”

The clients made an initial payment of $52,000 to defray costs, which was used to pay experts, and then counsel “advanced [the clients] an additional $34,000 for expert fees, deposition costs and travel expenses, and the amount of her legal services totaled almost $270,000.” The clients never made any further payments.

As a result counsel gave clients 60-days notice of her intent to withdraw from the case “unless [the clients] agreed to pay the outstanding costs and undertook to finance the necessary costs … to allow the case to proceed.” The clients stated to the trial court that counsel indicated that they would have “to immediately reimburse her for $34,000 in costs and would have to pay an additional $50,000 to $100,000 in costs.”

Counsel then attempted to find replacement counsel for her clients. According to the clients, what rendered this process unsuccessful was that counsel “was claiming a lien for costs and fees of over $300,000.” According to counsel, however, the clients were not even making payments on their account. The clients claimed that they could not afford to, a fact denied by counsel.

Counsel then filed a notice of her intention to file a motion for leave to withdraw her appearance. At this point the case had been inactive for more than a year and a trial had not yet been scheduled, nor had the defense filed any summary judgment motions. Shortly after counsel filed her notice of withdrawal two of the defendants moved for summary judgment. The clients retained a new attorney for the limited purpose of opposing original counsel’s motion to withdraw. The new attorney filed their objection and the original counsel therefore filed her now-opposed motion to withdraw. She also asked the court to push back the due date for the responses to the summary-judgment motions to give the clients time to find replacement counsel and for the replacement to get up to speed. This request proved unnecessary because she was eventually successful in convincing the moving defendants to strike their summary-judgment motions until the court had resolved her withdrawal request.

At the hearing on her motion counsel argued that the clients had breached the terms of the engagement letter because of their failure to make any further payments to cover her costs. The clients argued that “they would be adversely affected if [counsel] withdrew because there were two summary judgment motions pending and because they had been unable to find another lawyer” and were “sabotaged” by the $300,000 lien claimed by counsel. They also contended that it was her responsibility to find replacement counsel. She responded “that she did not expect” full reimbursement for her legal expenses once she withdrew. She also referenced “other conflicts between her and [her client] but did not elaborate.”

The court ruled that counsel could not withdraw until after she had found new counsel for the clients and that she needed to respond to the summary-judgment motions. The court did not rule on the question of who was responsible for the costs. Thereafter, the Court of Appeals of Washington, an intermediate appellate court, granted counsel’s request for allowance of a discretionary appeal.

The trial court declined to submit an opinion to the appellate court “to expand on its earlier ruling.” But it noted that attorneys can be held in contempt if they fail to adhere to such orders as the one appealed from here.

Counsel argued that the trial court’s refusal to allow her withdrawal placed her “in a horrific conflict position.” She argued that she was not able to “promote the clients” in efforts to find replacement counsel when her clients were in breach of contract and accusing her of unethical conduct. She noted that she was being asked to “continue to finance [the clients’] case forward without any responsibility on [their] part.” She concluded: “And I don’t know how under those circumstances … I can going [sic] to another lawyer and say: This is a great case and a great client, and I really want you to take this on.”

The clients then found a replacement counsel to handle the entirety of their case, withdrew their objection to the original counsel’s withdrawal and moved to vacate the order denying her withdrawal motion. The trial court entered an order vacating the original ruling on the withdrawal motion but refused to make it effective nunc pro tunc to the date of the original ruling. Notwithstanding, the clients contended that this rendered original counsel’s pending appeal moot. The appellate court disagreed, finding that it had to determine whether the original counsel was responsible for the case after the date that the trial court first ruled on the withdrawal motion and the date on which the trial court vacated that ruling.

The appellate court went on to consider whether the trial court had abused its discretion in refusing to permit the original counsel to withdraw. It noted that permitting withdrawal is the rule and not the exception. The trial court was required to consider all “pertinent factors” in determining whether to allow the withdrawal. The appellate court referred to case law and Washington state Rule of Professional Conduct 1.16 to enumerate the factors to be considered, which included: “whether the client has paid the lawyer’s fees, whether the client has refused to cooperate with the lawyer, whether a denial of withdrawal will cast an unfair financial burden on the attorney, whether the lawyer is unable to find or communicate with the client, and whether there is any other prejudice to the client or lawyer.”

The appellate court analyzed the case before it by referencing a prior case in which the fee agreement between the lawyer and his client figured prominently. As in that case, the fee agreement between the original counsel and her clients contained an express provision permitting her to withdraw. She had also argued that she gave ample notice of her intent and offered to assist in finding new counsel and that her clients had made it clear that they no longer wanted her representation. These factors, she argued, were sufficient to permit her withdrawal.

The appellate court agreed and remanded the matter to the trial court for entry of an order granting the motion to withdraw as of the date of the original ruling. In so doing the appellate court rejected the clients’ argument that original counsel was impeding their efforts to find new counsel by advising prospective counsel of the potential lien for her costs and services or that prospective counsel would have been prejudiced by her withdrawal with motions for summary judgment pending. The appellate court noted that the motions had been withdrawn and that the fee agreement indicated that the clients would reimburse counsel for costs and pay counsel fees.

This case illustrates the importance of clear and complete engagement letters, especially in contingent-fee cases. No attorney wants to face the nightmare scenario that the original counsel faced in this case or have to deal with what might have happened had her fee letter not permitted withdrawal at her discretion.

Jeffrey P. Lewis is a member in the Philadelphia office of the law firm of Eckert Seamans Cherin & Mellott LLC. He serves on the PBA Professional Liability Committee.