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Lockhart v. Greive8/3/1992
of the court. We hold that would not have made a difference in this case. Lockhart has given no indication that he would have objected, nor has he stated any ground of objection that would have justified a denial by the court of Murphy's requested withdrawal. The circumstances were such that there was no prejudice to Lockhart by permitting the withdrawal.
RPC 1.15(b) permits a lawyer to withdraw "if withdrawal can be accomplished without material adverse effect on the interests of the client".
Material adverse effects were avoided here by Murphy in that he filed a summons and complaint prior to the running of the 3-year statute and thereby created a 90-day window in which jurisdiction over the defendants could have been obtained by the service of process within that 90 days. Murphy gave ample notice to Lockhart to enable him to protect his interests and took care to advise Lockhart and his new attorneys, Greive and Serrin, of the necessity of timely service of process on the defendants. Knowledge by Greive and Serrin of this necessity is demonstrated by the attempted service within the 90-day period of a summons and complaint on the Burlington Northern Railroad Company. While the necessity of serving the State of Washington and Snohomish County was known to Greive and Serrin, the record does not reflect any reason for their failure to serve process on these governmental entities. The conclusion is inescapable: The failure of Murphy to comply with CR 71 in withdrawing as counsel was not a contributing cause to the running of the statute of limitations against Lockhart's claims.
A similar issue was faced by the court in Barry v. Ashley Anderson, P.C., 718 F. Supp. 1492 (D. Colo. 1989). In Barry,
the plaintiff (Barry) terminated his attorney-client relationship with his attorney, Francis, due to Francis' conflict of interest. Barry, at 1493. Although Barry then retained Anderson as counsel, Francis never formally withdrew and Anderson filed no formal entry of appearance. Barry, at 1493. The trial court later issued Francis a notice that the case would be dismissed if not prosecuted, and Francis notified Anderson of this fact. Barry, at 1493-94. Nevertheless, the case was dismissed for a failure to prosecute. Barry, at 1494.
Barry then brought an action for malpractice against Francis. He contended that as the attorney of record, Francis had a continuing duty to represent him, was negligent in doing so, and as a result his claim was dismissed. Barry, at 1494. The court disagreed, holding as a matter of law that Barry terminated his attorney-client relationship with Francis when Anderson undertook the representation. Barry, at 1494. The court held that any residual duties Francis owed to Barry by virtue of his failure to formally withdraw from the case were satisfied when he gave notice to Anderson that the case was subject to dismissal for failure to prosecute. Barry, at 1494. The fact that Francis was discharged, rather than withdrew, does not change the basis of the decision which relies heavily on the fact of termination of the attorney-client relationship.
Award of Sanctions
Lockhart objects to the award of sanctions against his attorney, and Murphy and Welts object and cross-appeal the trial court's action in reducing the amount requested as a sanction under CR 11 and RCW 4.84.185. We will not address the issue raised by the cross appeal because we conclude no sanctions should have been imposed.
[5, 6] A plaintiff may be subject to CR 11 sanctions if three conditions are met: (1) the action is not w
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