§71.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§71.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Strategy may be involved in the use of CR 71: the withdrawing attorney must determine the best method of accomplishing the goal of withdrawal; the nonwithdrawing other attorneys must consider the effect of withdrawal on the trial date and any impact on the ability to obtain information, including pending discovery.

(1)Considerations for the withdrawing attorney

In the majority of cases, an attorney seeks to withdraw because of nonpayment of fees. Ordinarily this is a legitimate reason under RCP 1.16(b)(4). See also Erickson v. Fargo Van & Storage, Inc., 25 Wn.App. 502, 607 P.2d 894, review denied, 93 Wn.2d 1028 (1980). The attorney, however, may lose a legitimate reason by delaying too long. In Willapa Trading Co. v. Muscanto, Inc., 45 Wn.App. 779, 786, 727 P.2d 687 (1986), notice of withdrawal two months in advance of the trial date was sufficient. The court, however, noted extenuating circumstances for instituting the late withdrawal.

Practice Tip: If you are concerned about the timing of your withdrawal, you may skip the notice of intent to withdraw and file a motion immediately. This will cut at least 10 days off the process, for you may not know if there is an objection requiring a motion until up to the 10th day after notice is served If a motion is used, you should give prior notice to the client.

If a client discharges an attorney, the attorney has the right to be paid before substitution is made. See RCW 2.44.040; Erickson, 25 Wn.App. 502; Rogers Walla Walla, Inc. v. Ballard, 16 Wn.App. 92, 553 P.2d 1379 (1976), review denied, 88 Wn.2d 1004 (1977). The court can rule in a summary proceeding on the amount of the fees and enter judgment. Until the attorney has actually withdrawn, however, the attorney remains responsible for zealously representing the client. In re Miller, 99 Wn.2d 695, 663P.2d1342 (1983).

At times, an attorney may be better off to withdraw voluntarily than to attempt to have the fees set and judgment entered. As long as the attorney is still in the case, the fees may mount and the advantage of obtaining a judgment may be offset by the additional fees incurred. A voluntary withdrawal generally will not entitle an attorney to have the court order that fees be paid. See Erickson, 25 Wn.App. 502.

Bear in mind that withdrawal may result in waiver of compensation for work done in a contingency case when withdrawal is without "good cause." Ausler v. Ramsey,...