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Lockhart v. Greive8/3/1992
EF--> (1992). In deciding a motion for summary judgment, all reasonable inferences must be made in favor of the nonmoving party. Butler, at 395.
Breach of Contract
Lockhart contends that Murphy's failure to perform and manner of withdrawal from the case are evidence of a bad faith exercise of the escape clause. He bases his argument in large part on the claim that Murphy did not conduct a good faith investigation before withdrawing as counsel. The record demonstrates considerably more investigation than Lockhart concedes in his brief. Lockhart does not specifically deny the acts of investigation asserted by Murphy.
Murphy's stated reason for withdrawal was that he was not in a position to advance the expenses that would be required to fully develop the evidence. This could be interpreted as an expression of his opinion that advancing substantial sums was not justified by the merits of the case.
This issue is not critical to the ultimate resolution of this case because the record is clear beyond dispute that Lockhart
did not at any time object to Murphy's withdrawal and proceeded without delay to employ another law firm to represent him.
The facts show a mutual rescission as a matter of law. Restatement (Second) of Contracts ยง 283, comment a (1981). Employment of other counsel, which is inconsistent with continuance of a former attorney-client relationship, "shows an unmistakable purpose to sever the former relationship." Belli v. Shaw, 98 Wash. 2d 569, 577, 657 P.2d 315 (1983). Furthermore, Lockhart's breach of contract claim could only become a material issue if there is a basis for holding that it was a proximate cause of Lockhart's claim being barred by the statute of limitations. The record before this court makes it clear that it was not. Murphy had terminated the attorney-client relationship, and Greive and Serrin took over responsibility for the case approximately 90 days before the claim was barred by the statute of limitations.
Failure To Comply With CR 71
It is conceded that Murphy did not follow the requirements of CR 71 for withdrawal by notice. Nor did he file a Notice of Withdrawal and Substitution, as permitted by CR 71(d). This created the unusual situation whereby Murphy, having signed the original complaint, remained an attorney for Lockhart on the record, even though it was clearly understood by all persons involved that Lockhart was being represented by Greive and Serrin. Lockhart argues that Murphy is liable to him because he was an attorney of record at the time the statute of limitations ran on his claims. The flaw in Lockhart's argument is that, at the time the statute ran, the circumstances were the same as they would have been had Murphy withdrawn in full compliance of CR 71. Greive and Serrin would be the attorneys actively representing Lockhart, and Murphy would have been taking no active part in the case. The attorney-client relationship between Lockhart and Murphy had been effectively terminated prior to the running of the statute of limitations. The failure to comply with CR 71 did not impede in any
way the ability of Greive and Serrin to make timely service of process on one or more of the defendants.
Strict compliance with CR 71 would have caused Lockhart to be notified that he had a right under CR 71 to file a written objection to the withdrawal. Had such a written objection been filed, withdrawal could then have been accomplished only by an order
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