Order Allowing Withdrawal Won't Block Malpractice Suit

By Joan C. Rogers

April 21— A court order allowing attorneys to withdraw from a case doesn't save them from the clients' subsequent malpractice suit alleging that the withdrawal was improper, the Washington Court of Appeals, Division Three, held April 26.

Judicial permission for a lawyer to withdraw doesn't constitute a binding endorsement of the lawyer's view of any ethics issues the withdrawal might present, Judge Kevin M. Korsmo said for the court.

The case highlights the riskiness of pulling out on the eve of trial over the client's objection, even when the lawyer believes it's ethically justified and the court gives its blessing. The client can relitigate the propriety of the withdrawal in a subsequent malpractice action, the decision makes clear.

Split of Authority

The court said the ethics rule on withdrawal from representation, Washington Rule of Professional Conduct 1.16, doesn't dictate a trial court's decision on a contested motion to withdraw, although the ethics rule may inform the decision.

The court rule on withdrawal in civil cases, Washington CR 71, “essentially is divorced from an attorney's ethical obligations to his client,” Korsmo said.

A trial court may accept an attorney's statement that professional considerations require withdrawal without determining that it's a correct statement of the factual circumstances, the court said. In other words, the trial court is permitted to accept counsel's assertion without actually determining that withdrawal is required by Rule 1.16, Korsmo said.

The court didn't follow an Arkansas case which found that court-authorized withdrawal barred a malpractice action asserting that the withdrawal constituted malpractice, or a Michigan case which held that a jury in a fee dispute shouldn't have been allowed to reconsider the validity of a court-sanctioned withdrawal.

Rather, the court found persuasive Fisher v. State, 248 So. 2d 479 (Fla. 1971), which said that a trial court should rarely deny withdrawal but that permission to withdraw won't relieve the lawyer of civil liability or discipline for breach of duty to the client.

No Collateral Estoppel

The court decided that James and Patti Schibel may continue their malpractice suit alleging that attorneys Richard Eymann and Michael Withey failed to protect their interests when the lawyers withdrew on the eve of trial and were unable to secure a continuance.

An appellate decision that upheld the order allowing the lawyers to withdraw doesn't foreclose the clients' malpractice suit, the court concluded.

Collateral estoppel doesn't apply because the withdrawal order didn't necessarily decide the same issue presented here, the court said. At issue in the earlier case was whether the lawyers complied with CR 71, not whether there actually was an ethics problem that prevented them from continuing to represent the Schibels, Korsmo said.

The court also said applying collateral estoppel would be unjust to the Schibels because the trial court in the underlying case approved the withdrawal motion without letting the clients explain their disagreement with the lawyers in camera.

The trial court's refusal to hear from the clients in camera was correct, but that meant they didn't have a full and fair opportunity to present their side, Korsmo said.

Judges Rebecca L. Pennell and George B. Fearing concurred.

Evans, Craven & Lackie P.S. and Forsberg & Umlauf P.S. represented the attorneys and their firms. Steven E. Turner, Vancouver, Wash., represented James and Patti Schibel.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

For More Information

Full text at http://www.bloomberglaw.com/public/document/Schibel_v_Eymann_No_329372III_2016_BL_131584_Wash_App_Div_3_Apr_2.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA. 

Copyright 2016, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.