§71.6 Analysis

• Jurisdiction: Washington

§71.6ANALYSIS

The following sections address methods of withdrawal as an attorney of record in pending matters and considerations associated with the decision to withdraw.

(1) Methods of withdrawal

Three methods of withdrawal exist: (1) by court order, (2) by unilateral notice, and (3) by substitution of another attorney.

(a)Withdrawal by court order

Withdrawal by court order is required for court-appointed attorneys such as guardians ad litem or attorneys in deprivation of parental rights proceedings or in juvenile justice hearings. See State v. Bastas, 75 Wn.App. 882,880P.2d 1035 (1994). Acourt order permitting withdrawal is also necessary when an objection has been filed to an attorney's unilateral notice of withdrawal.

To obtain a court order, the withdrawing attorney must bring a motion requesting court authorization to withdraw. The rule is silent as to the mechanics of the motion; thus, rules regarding motion practice apply. See CR 7. CR 71(b) expressly requires a withdrawing attorney to give the client notice of the motion, including the date and place for the hearing.

A retained attorney on a civil case generally should be allowed to withdraw. Kingdom v. Jackson, 78 Wn.App. 154,896 P.2d 101 (1995), review denied, 129 Wn.2d 1014 (1996) (trial court abused discretion in denying withdrawal when attorney took steps to minimize impact but could not obtain substitute counsel for client).

Practice Tip: If a court order permitting withdrawal is required because of an objection to the notice of intent to withdraw, serve the client with notice of the time and place of the hearing on the motion even though the initial notice of intent to withdraw previously was served. Because CR 71(b) expressly requires notice of the motion, failure to notify the client may violate the court rule even if the client does not object.

(b)Unilateral withdrawal

Unilateral withdrawal is the most common method. CR 71(c) requires the following:

(1)service of a notice of intent to withdraw on the client before the other parties;

(2)service of a notice of intent to withdraw on all parties;

(3)a 10-day time lapse between service of the notice of intent to withdraw and the specified effective date; and

(4)the inclusion of certain information, including a statement that the withdrawal shall become effective on the date specified without order of the court unless an objection is made; the date set for trial, if applicable; and the names and last known addresses of the persons represented by the withdrawing attorney.

CR 71 requires the withdrawing attorney to file proof of service of the notice of intent to withdraw on both the client and the other attorneys involved in the matter. If the disclosure of the client's address, as mandated by CR 71, would violate the Rules of Professional Conduct, it may be omitted. In such cases, the notice must specify that, after the attorney withdraws, and as long as the client's address remains undisclosed and no new attorney is substituted, the client maybe served by leaving papers with the clerk of the court pursuant to CR 5(b)(1).

CR 71 does not specify how much time must be allowed between service on the client and service on other parties. CR 71(c)(2) only says "[p]rior to service on other parties ...." You should remember this in calculating the timing of withdrawal. A minimum of 10 days' notice is required from service on parties to the case, but you must also allow time for "prior service" on the client. If notice is mailed, it should be certified, and the three-day mailing requirement of CR 6 would apply.

Withdrawal is effective on the date specified in the notice unless a written objection is served on the withdrawing attorney by a party prior to that date. The rule is silent as to the client's ability to object. Because the rule specifically requires service on the client, however, presumably the client can object. If an objection is made, a court order is required as outlined above. The rule does not specify the contents of a written objection or who has the burden of obtaining a court order. Logically, the withdrawing attorney has the burden of bringing a motion, or the withdrawal is not effective.

Practice Tip: Carefully follow the precise requirements of CR 71 for withdrawal. Imagine the consequences of believing you have withdrawn, and even having your clients agree that you had withdrawn, but the court later finding that you are still responsible for ongoing matters in the case because the withdrawal was ineffective.

Jones v. Home Care of Washington, Inc., 152 Wn.App. 674,216 P.3d 1106 (2009), review denied, 169 Wn.2d 1002 (2010), demonstrates the risk of failure to follow the precise procedure. The plaintiffs settled their class action claims (before class certification) on their own and dismissed their attorney who they asked to withdraw. The attorney filed a notice of intent to withdraw, but before it was effective the plaintiffs and defendant filed a stipulation and order of dismissal, but did not serve it on the withdrawing attorney. The attorney then filed a motion to vacate the order of dismissal on behalf of the putative class pursuant to CR 60 claiming an "irregularity in obtaining a judgment." The Court of Appeals reversed the denial of the motion to vacate because the attorney was still counsel of record until the 10 days expired, and he had not been served the stipulation...