JAMES SCHIBEL, an individual, and PATTI SCHIBEL, an individual; and the marital community thereof, Respondents,
RICHARD EYMANN, an individual; EYMANN ALLISON HUNTER JONES, PS, a Washington professional services corporation; MICHAEL WITHEY, an individual; LAW OFFICES OF MICHAEL WITHEY, PLLC, a Washington professional limited liability company, Petitioners.
case, former clients are suing their attorneys for legal
malpractice based, in part, on the attorneys' withdrawal
from a prior case. But the attorneys obtained that withdrawal
by court order. In the original case, the former clients
appealed the court's order approving withdrawal, and that
appeal was rejected. The attorneys thus argue that collateral
estoppel applies to bar a malpractice action based on their
withdrawal. We agree. We hold that the fact of withdrawal by
court order in an earlier proceeding is dispositive in a
later malpractice suit against the attorney. Although other
malpractice complaints unrelated to the withdrawal would not
be precluded, a client cannot relitigate whether the
attorney's withdrawal was proper. If we are to have rules
permitting attorney withdrawal, we must allow attorneys to
have confidence in those rules. We, therefore, reverse the
Court of Appeals.
malpractice action, James and Patti Schibel allege that
attorneys Richard Eymann and Michael Withey (Attorneys)
committed legal malpractice and breached their fiduciary
duties. Specifically, the Schibels claim that the Attorneys
committed malpractice because they failed to timely and
adequately prepare for trial, failed to properly handle
settlement discussions and negotiations, and improperly
withdrew from the case on the eve of trial.
original case began in 2007 when the Schibels sued their
former landlord, Leroy Johnson, for breach of a commercial
lease and negligent infliction of injury due to mold
exposure. When the Schibels originally filed their action, a
different attorney represented them. But that attorney
withdrew in 2009 due to a fee dispute with the Schibels. When
the original attorney withdrew, the Attorneys took over the
case and entered into a contingent fee agreement with the
for the original case was continued several times. When the
Attorneys took over the case, trial was continued to April
2010. The trial court continued the case twice more before
setting a trial date of November 1, 2010. At the last
continuance, the judge stated that there would be no more
October 10, 2010, the Attorneys informed the Schibels via
letter that they would need to withdraw in light of the
breakdown of the relationship between them and the Schibels.
The next day, the Attorneys filed a motion to withdraw and a
motion to continue the trial date. The Schibels objected to
the motion to withdraw. The hearing on the motions was held
on October 27, 2010 before Judge Annette Plese. Present at
the hearing were the Schibels, the Attorneys, and counsel for
Johnson. The Schibels explained that they had been unable to
find replacement counsel because of the fees they still owed
to the Attorneys. When Judge Plese asked the Schibels whether
they would be able to find replacement counsel if she granted
a continuance, they expressed that it seemed "fairly
bleak" that they could in the immediate future.
Clerk's Papers (CP) at 138.
Plese granted the Attorneys' motion to withdraw,
[A]t this point, it appears that there is a breakdown with
you and counsel, and the Court has no choice at this time
other than to allow them to withdraw on your behalf.
They've given the proper notice. They're here.
... I am going to allow [the Attorneys] to withdraw.
They've given the proper notice, and at this point, the
Court can't, on a civil case, order them to stay on board
and work the case, especially with their ethical obligations.
Id. at 139-40. Judge Plese then denied the motion
for a continuance, explaining that after Johnson strenuously
objected to the last continuance, she had said that there
would be no further continuances. Id. at 140. The
Schibels and Johnson then attempted settlement negotiations,
but those negotiations failed. In November 2010, the
Schibels' case against Johnson was dismissed with
Schibels retained counsel and appealed the withdrawal and
continuance rulings. The Court of Appeals affirmed.
Schibel v. Johnson, noted at 168 Wn.App. 1046, 2012
WL 2326992, at * 1. The Court of Appeals concluded that the
trial court had properly exercised its discretion when it
granted the Attorneys' motion to withdraw. 2012 WL
2326992, at *4. The Schibels petitioned this court for
review, which we denied. Schibel v. Johnson, 175
Wn.2d 1024, 291 P.3d253 (2012). And the Schibels sought
review in the United States Supreme Court, which was also
denied. Schibel v. Johnson, 133 S.Ct. 2344, 185
L.Ed.2d 165 (2013).
Schibels then filed this malpractice action against the
Attorneys. The complaint alleged that the Attorneys were
negligent based on their failure to timely and adequately
prepare for trial, their failure to properly handle
settlement discussion and negotiations, and various actions
surrounding the Attorneys' conduct in withdrawing from
the case. The alleged actions surrounding withdrawal included
failing to timely inform the Schibels of withdrawal, moving
to withdraw too late in the case, failing to condition their
withdrawal on a continuance, and failing to disclose earlier
the "interests and intentions" that led the
Attorneys to withdraw. CPat4-5.
Attorneys moved for summary judgment, arguing that complying
with applicable rules and obtaining the court's
permission for withdrawal precludes future actions for legal
malpractice based on that withdrawal. The trial court denied
the motion for summary judgment. On interlocutory appeal, the
Court of Appeals affirmed. Schibel v. Eymann, 193
Wn.App. 534, 372 P.3d 172 (2016). We accepted review and now
judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Christensen v. Grant County Hosp. Dist.
No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004); Court
Rule (CR) 56(c)). We review a trial court's ruling on
summary judgment de novo. Christensen, 152 Wn.2d at
305. We also review de novo whether collateral estoppel
applies to bar relitigation of an issue. Id.
governs the withdrawal of attorneys involved in civil
litigation. CR 71(c) provides that an attorney may withdraw
by notice in the following manner:
(1) Notice of Intent to Withdraw. The attorney shall
file and serve a Notice of Intent to Withdraw on all other
parties in the proceeding. . . .
(2) Service on Client. Prior to service on other
parties, the Notice of Intent to Withdraw shall be served on
the persons represented by the withdrawing attorney. . . .
(3) Withdrawal Without Objection. The withdrawal
shall be effective, without order of court. . . unless a
written objection to the withdrawal is served by a party on
the withdrawing attorney. . ..
(4) Effect of Objection. If a timely written
objection is served, withdrawal may be obtained only by order
of the court.
case, the Schibels objected to the Attorneys' withdrawal,
so the Attorneys could withdraw only by order of the court.
Rules of Professional Conduct (RPC) also address when an
attorney may withdraw. RPC 1.16(b) permits an attorney to
withdraw from representation if:
(1) withdrawal can be accomplished without material adverse
effect on the interests of the client;
(2) the client persists in a course of action involving the
lawyer's services that the lawyer reasonably believes is
criminal or fraudulent;
(3) the client has used the lawyer's services to
perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer
considers repugnant or with which the lawyer has a
(5) the client fails substantially to fulfill an obligation
to the lawyer regarding the lawyer's services and has
been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled;
(6) the representation will result in an unreasonable
financial burden on the lawyer or has been rendered
unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
rule is written in the disjunctive, meaning an attorney may
withdraw if there is no harm to the client, the client has
engaged in any of the five specific behaviors, or other good
estoppel, also known as issue preclusion, bars relitigation
of an issue in a later proceeding involving the same parties.
Christensen, 152 Wn.2d at 306. Collateral estoppel
promotes judicial economy and prevents inconvenience or
harassment of parties. Id. (citing Reninger v.
Dep't of Corr.,134 Wn.2d 437, 449, 951 P.2d 782
(1998)). Importantly, collateral estoppel provides finality
in adjudications, shielding parties and courts from expending
resources in repetitive litigation. Id. at 307.
Collateral estoppel precludes only those issues that were
actually litigated and necessary to the final determination
in the earlier proceeding. Id. (citing Shoemaker
v. City of Bremerton,109 Wn.2d 504, 507, 745 P.2d 858
(1987)). For collateral estoppel to apply, the party seeking
it must show (1) the issue in the earlier proceeding is
identical to the issue in the later proceeding, (2) the