Hartwig v. Johnsen

2008 UT 40
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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David R. Hartwig, No. 20070576
Plaintiff and Appellant,
v.
F I L E D
Cynthia Johnsen,
Defendant and Appellee. July 8, 2008
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Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 040924002
Attorneys: David R. Hartwig, Salt Lake City, for plaintiff
Richard C. Dibblee, Salt Lake City, for defendant
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WILKINS, Justice:
¶1 We are called upon in this case to decide the narrow
question of whether the trial court applied the correct legal
standard when it concluded that withdrawal of counsel was not
justified because the attorney-client relationship was not
“irretrievably broken.” We conclude that the trial court applied
the wrong legal standard. We therefore reverse and remand.
BACKGROUND
¶2 In 2001, Cynthia Johnsen hired attorney David Hartwig
to represent her in a personal injury claim stemming from a car
accident. In conjunction with the representation, Johnsen signed
a Contingent Fee Retainer Agreement (the “Agreement”). Among
other things, the Agreement provided that in the event Johnsen’s
actions caused Hartwig to withdraw from representation prior to
the completion of the case, Johnsen was obligated to pay attorney
fees--based upon an hourly rate--for all the time Hartwig had
expended prior to the withdrawal.
¶3 Some time after signing the Agreement, Johnsen and
Hartwig began having difficulty with their attorney-client
relationship. As a result, Johnsen threatened to file a

1 In his original complaint, Hartwig claimed Johnsen owed
him $10,392.36 plus interest. At the trial, however, Hartwig
testified that Johnsen owed him a slightly different amount,
i.e., $10,307.17, plus $5749.63 in interest and $197.17 and
$182.00 in costs and fees. Hartwig also testified that Johnsen
had a credit of $221.55. Therefore, the trial court will need to
determine the correct amounts owed.
No. 20070576 2
professional misconduct claim against Hartwig with the Utah State
Bar. In May 2004, and in direct response to her threat, Hartwig
sent correspondence to Johnsen indicating his withdrawal from her
case, effectively terminating their attorney-client relationship.
¶4 Following his withdrawal as counsel, Hartwig sued
Johnsen for $10,392.36 plus interest1 for work he had performed
prior to the alleged breach of the Agreement. More specifically,
relying on paragraphs 23 and 25 of the Agreement, Hartwig claimed
that Johnsen’s threat to file a claim with the Utah State Bar
constituted an “action” that justified his withdrawal as counsel
and entitled him to attorney fees for work performed.
¶5 After a two-day bench trial, the trial court concluded
that Hartwig had failed to prove by a preponderance of the
evidence that the attorney-client relationship had been
irretrievably broken. Therefore, the trial court concluded that
Hartwig was not justified in withdrawing from the case and had no
right to recover his fees. Hartwig now appeals that decision.
STANDARD OF REVIEW
¶6 Whether attorney fees are recoverable is a question of
law “which we review for correctness.” Jensen v. Sawyers, 2005
UT 81, ¶ 127, 130 P.3d 325. The determination of whether an
attorney has good cause to withdraw as counsel, however, is
extremely fact-intensive. Accordingly, “[f]actual findings . . .
are upheld ‘unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the
credibility of the witnesses.’” Zions First Nat’l Bank, N.A. v.
Nat’l Am. Title Ins. Co., 749 P.2d 651, 653 (Utah 1988) (quoting
Utah R. Civ. P. 52(a)).
ANALYSIS
¶7 Hartwig contends that an attorney may recover fees he
has already earned if the attorney withdraws from a case for
“good cause.” Moreover, Hartwig argues that the trial court in
this case erroneously applied the higher standard of
“irretrievably broken” to determine whether his withdrawal was
justified. Johnsen, on the other hand, concedes that “good

2 Indeed, Hartwig made several references to a “breakdown”
of the attorney-client relationship during his closing argument.
For example, Hartwig stated that when Johnsen threatened to file
a complaint with the Utah State Bar, “that is really the decay of
the relationship,” which “show[s] a huge breakdown in trust and
communications” as well as a “breakdown in confidence.” (Emphases
added.) Additionally, Hartwig stated that “the relationship has
degenerated to a great extent, even perhaps, irreparable,” and
that there had been a “breakdown of the attorney-client
relationship.” (Emphases added.)
3 Johnsen raises a host of alternative grounds for
affirmance. Specifically, Johnsen argues that (1) Hartwig’s
withdrawal was not justified because the Agreement was ambiguous
and vague, (2) no “good cause” existed to justify Hartwig’s
withdrawal, and (3) Hartwig failed to provide sufficient evidence
of damages to establish his claim for attorney fees and
reasonable costs.
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cause” is the appropriate standard but argues that the trial
court actually applied that standard, even though it used the
term “irretrievably broken.” Johnsen also contends that any
error in using the “irretrievably broken” terminology was invited
by Hartwig because he used that language repeatedly in his
closing arguments to the trial court.2 Finally, Johnsen claims
that if we conclude that the trial court applied the incorrect
legal standard, we should nonetheless affirm on alternative
grounds.3 Because we conclude that the trial court applied the
wrong legal standard and that conclusion is dispositive, analysis
of Johnsen’s alternative grounds is premature.
¶8 We have long held that “[w]hile a party may discharge
his [or her] attorney with or without cause, [an] attorney should
not withdraw from a case except for good cause.” Midvale Motors,
Inc. v. Saunders, 442 P.2d 938, 940 (Utah 1968). Accordingly,
the legal standard applicable to determining whether an
attorney’s withdrawal is justified is whether the attorney had
good cause. Whether good cause exists is a fact-intensive
inquiry based on the reasons for withdrawal and the actions of
the parties prior to withdrawal. If, based on the parties’
actions, the withdrawal is for good cause, the attorney may seek
his fees earned up until the time of the voluntary withdrawal.
See W. Wagner & G. Wagner Co. v. Block, 669 N.E.2d 272, 276 (Ohio
Ct. App. 1995) (stating that an attorney could not recover fees
for the time expended on a case “unless the withdrawal was for
just cause”); cf. Midvale Motors, 442 P.2d at 940 (“[U]nless an
attorney has just grounds to withdraw, he waives his retaining
lien by thus terminating his services.”). In order to do this,

4 The trial court acknowledged that “good cause” was the
correct legal standard for determining whether it was appropriate
for Hartwig to have withdrawn as counsel. For example, during
Hartwig’s direct examination of Johnsen, the trial court asked
“isn’t the gravamen of the claim here that . . . there had been a
breakdown of communications . . . justifying, the good cause” for
withdrawal? (Emphasis added.) Additionally, the trial court
acknowledged that “the standard in terms of withdrawing appears
to be that there’s good cause to withdraw.” (Emphasis added.)
Hartwig also notified the trial court that “good cause” was the
correct standard when he argued, “This is the general rule.
Basically, good cause. What is good cause? Circumstances such
as client’s claim is fraudulent.” Although the trial court
clearly understood the correct legal standard, it used different
language, i.e., “irretrievably broken,” in its findings of fact
and conclusions of law.
No. 20070576 4
however, the attorney must have proof of the work done and
demonstrate that the work was of value to or benefitted the
client.
¶9 In this case, the trial court erroneously applied a
higher legal standard, requiring that the relationship between
Hartwig and Johnsen be “irretrievably broken” in order for
Hartwig’s withdrawal to be justified. Indeed, the trial court
formally concluded that “[Hartwig] was entitled to withdraw from
the case prior to completion, and to recover at his hourly rate
for all time expended up to the time of withdrawal, only if the
attorney-client relationship between the parties had
irretrievably broken down as a result of [Johnsen’s] actions.”4
(Emphasis added.) This is not the correct legal standard.
CONCLUSION
¶10 The correct legal standard for determining whether
withdrawal of counsel is justified is whether the attorney had
good cause to withdraw, and the trial court in this case
erroneously applied a higher legal standard. Accordingly, we
reverse and remand so that the trial court may review the case
based on the evidence already presented as reflected in the
record and apply the correct legal standard. No further
evidentiary hearing is necessary.
¶11 Reversed.
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¶12 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion.