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Robbins v. Legacy Health Sys., Inc.

Court of Appeals of Washington, Division 2

October 22, 2013

Melissa N. Robbins et al., Respondents,
Legacy Health System, Inc., et al., Defendants, Mary Schultz, Petitioner

Appeal from Clark Superior Court. Docket No: 09-2-01840-9. Date filed: 06/15/2012. Judge signing: Honorable John P Wulle.

Philip A. Talmadge (of Talmadge / Fitzpatrick ), for petitioner.

Paul L. Henderson (of Henderson Law Firm PLLC ), for respondents.

AUTHOR: Christine Quinn-Brintnall, J. We concur: J. Robin Hunt, P.J., Bradley A. Maxa, J.


Page 97

Quinn-Brintnall, J.

[177 Wn.App. 302] ¶ 1 Mary Shultz appeals the trial court's June 15, 2012 order refusing to allow her to withdraw as the attorney for Melissa and Geoffrey Robbins. Concluding that the trial court abused its discretion in refusing to allow Schultz to withdraw, we reverse the trial court's order and remand with instructions to vacate that order effective June 15, 2012.


¶ 2 In late 2008, the Robbinses contacted Schultz, a Spokane attorney, to see if she would represent them in a medical negligence case in Clark County. Schultz sent the Robbinses a proposed representation agreement and advised them that the litigation costs would very likely be in the tens of thousands of dollars. After reviewing the document and consulting with independent counsel, the Robbinses and Schultz executed representation agreements. As to litigation costs, the agreements provide,

8. Litigation Costs are the responsibility of the Client. The Client is responsible for paying all costs of this litigation as they are incurred.
a. All reasonable costs and expenses associated with pursuing the matter in

Page 98

Paragraph 1 will be charged to the Client. The Client agrees to pay for, reimburse and save the Attorney harmless from any and all costs, disbursements and expenses incurred or deemed necessary by the Attorney in the handling of the Client's case.
b. The Attorney is authorized to advance for the account of the Client those costs and expenses which are deemed necessary and proper for the prosecution of Client's claims, but the Client shall reimburse the Attorney as that Client is able to do so, using best efforts. The Client shall also reimburse all outstanding costs existent at the time of settlement, conclusion of litigation, termination of representation by Attorney, or other conclusion of the case.

Clerk's Papers (CP) at 54. As to termination of the agreements, they provide,

[177 Wn.App. 303] 20. Client may discharge Attorney at any time, upon written notice to Attorney. Attorney may withdraw from representation of Client (a) with Client's consent, (b) upon court approval, or (c) if no court action has been filed, for good cause and upon reasonable notice to Client. ...
a. Abandonment of the claim by the Client may occur if the Client breaches this contract, or materially fails to cooperate with the office or the contractual provisions herein. In the event the Attorney feels that she is required to withdraw because of such, then such is considered a forced termination.

CP at 57-58.

¶ 3 In 2008 and 2009, the Robbinses sent Schultz $52,000 to pay for their costs. Schultz consulted with experts regarding the case and used up those funds. By January 2012, Schultz had advanced the Robbinses an additional $34,000 for expert fees, deposition costs, and travel expenses, and the amount of her legal services totaled almost $270,000.

¶ 4 Schultz told the Robbinses in November 2011 that their case would not move forward unless they complied with the fee agreement. She subsequently gave the Robbinses 60 days notice that she would file a formal notice of withdrawal unless they agreed to pay the outstanding costs and undertook to finance the necessary costs to allow the case to proceed. According to the Robbinses, Schultz said they had to immediately reimburse her for $34,000 in costs and would have to pay an additional $50,000 to $100,000 in costs.

¶ 5 In January 2012, Schultz tried unsuccessfully to find the Robbinses another attorney. She sent them a letter in February 2012, offering assistance in transferring the case and inviting them to have any interested counsel contact her. The Robbinses attempted to retain another attorney, but the other attorneys refused to take the case because it was too far into the litigation and because the Robbinses asserted that Schultz " was claiming a lien for costs and fees of over $300,000." CP at 49. The Robbinses did not pay Schultz any money beyond the initial $52,000.

[177 Wn.App. 304] ¶ 6 Schultz filed a notice of withdrawal on April 4, 2012. At the time, no formal action in the case had occurred for over a year, no summary judgment motion had been filed, and no trial date was set. Two of the medical defendants moved for summary judgment shortly after Schultz filed her notice of withdrawal. The Robbinses retained an attorney for the limited purpose of objecting to Schultz's withdrawal. After they filed their objection, Schultz moved for permission to withdraw. She also moved to continue the recently filed summary judgment motions, noting that the Robbinses would need time to find new counsel to respond, who would in turn need time to (1) understand the evidence generated to date, (2) obtain an expert affidavit establishing the standard of care violations, and (3) address the law related to chief executive officer liability. The two medical defendants subsequently agreed to strike their summary judgment motions pending resolution of the representation matter.

¶ 7 At the hearing on her motion, Schultz argued that she was entitled to withdraw because the Robbinses had breached the fee agreement and had failed to fulfill their ...

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