I’ve written this before: Every lawyer needs to know how to withdraw from a representation.
I’ve even written it in this space. (See my Jan./Feb. 2021 Law Practice column, “Withdrawing Artfully and Safely.”)
It’s a basic lawyer competence that, on occasion, is required of each of us. It’s easy to screw up. And it can be made safer and easier with some thought and guidance.
This spring, the ABA Standing Committee on Ethics and Professional Responsibility provided us with a little bit more guidance. We would all do well to add it to our thinking.
ABA Formal Opinion 516, Terminating a Client Representation Under MRPC 1.16(b)(1): What “Material Adverse Effects” Prevent Permissive Withdrawal? (April 2, 2025) addresses just what the title says.
In virtually every jurisdiction, ABA Model Rule 1.16 governs a lawyer’s withdrawal from representation, regardless of the type of matter.
The Rule’s Comment notes that “[a] client has a right to discharge a lawyer at any time, with or without cause, subject to payment for the lawyer’s services.” But Rule 1.16 does limit the circumstances under which a lawyer may or, in some situations, must end a representation. As the Opinion notes, “[s]imply put, getting out of a matter can be a lot harder than getting in.”
Rule 1.16(a) requires a lawyer to end, or seek the court’s permission to end, a representation when continuing will violate the Rules, the lawyer isn’t fit to continue the representation, the lawyer is fired, or the client is using the lawyer’s services for a crime or fraud.
In contrast, under Rule 1.16(b)(1) a lawyer may voluntarily end, or try to, an ongoing representation only if “withdrawal can be accomplished without material adverse effect on the interests of the client,” or for good cause. Then sections (b)(2) through (b)(6) list a wide range of grounds on which a lawyer is permitted to end a representation, including non-payment, lack of communication, fundamental disagreement on how to handle the matter, and unreasonable financial burden.
Quite often, a lawyer who wants to end a representation can find one of these grounds to justify her desire, even if that is not her real motivation. But the new Opinion focuses on the mostly unfettered right to withdraw where “withdrawal can be accomplished without material adverse effect on the interests of the client.” What does that mean exactly? For the first time, the ABA has given us some tangible guidance.
Noting that section (b)(1)’s grant of such broad discretion to a lawyer to withdraw was new to the ethics rules when the Model Rules were adopted in 1983, the Opinion concludes that there would be a “material adverse effect on the interests of the client”:
if the lawyer’s withdrawal would significantly harm the client’s interests in the matter in which the lawyer represents the client—e.g., if the lawyer’s withdrawal would result in significant harm to the forward progress of the client’s matter, significant increase in the cost of the matter, or significant harm to the client’s ability to achieve the legal objectives that the lawyer previously agreed to pursue in the representation.
The Opinion then offers helpful examples.
For example, a lawyer’s withdrawal may—that’s the word the Opinion uses—have a material adverse effect and thus not be able to use section (b)(1)’s broad permissive withdrawal option:
A lawyer wanting to withdraw might mitigate some of these harms and clear the way for easy withdrawal by, for example, helping the client find a new lawyer, bringing new counsel up to speed more quickly, or returning or foregoing some fees for work that might be duplicated by new counsel.
Remember, of course, that even in these examples, if another ground for permissive withdrawal identified in sections (b)(2) through (b)(6) is present, the lawyer is permitted to withdraw.
But the Opinion also offers some situations unlikely to amount to material adverse effects and thus allowing permissive withdrawal under section (b)(1).
Unlikely to amount to a material adverse effect precluding a lawyer’s withdrawal under section (b)(1) are situations:
Also good for lawyers to read is the committee’s conclusion that merely “a client’s disappointment that this particular lawyer will not conduct or complete the representation is not a ‘material adverse effect’ contemplated by the provision. If it were otherwise, the provision could never be used to permit a lawyer to unilaterally end the client-lawyer relationship.”
Oh, and don't forget, the Opinion reminds us: Consent works, too. A client may agree to allow a lawyer to withdraw, avoiding concerns about almost all these fine points of ethics.
The Opinion also spends some time on the question of whether a lawyer may use Rule 1.16(b)(1) broad permissive withdrawal where the lawyer’s motivation is to represent another client adverse that the first client. Egregious situations of this type have generated a line of case law espousing the “hot potato” doctrine.
These decisions rest on the notion that a lawyer cannot drop one client like the proverbial heated vegetable to take on a new, presumably more lucrative client. For that reason, in these cases, courts refuse to treat a former client—the one dropped, where the attorney-client relationship seems to have clearly ended—as a former client for conflicts purposes. The result: the lawyer taking on the new client, adverse to the old client who the court now considers to still be a current client, is disqualified and cannot represent the new client adverse to the old one.
While the committee appears to conclude—correctly, in my view—that “the lawyer’s motivation is irrelevant” under section (b)(1), its discussion of this situation drew two committee members’ dissent. We’ll leave that slightly arcane dispute to your reading. Still, if you face this situation—a desire to drop one client, to free yourself or your firm to be adverse to that client in another (presumably unrelated) matter, this Opinion is worth a read.
All in all, good guidance for all of us to help us withdraw artfully and safely.
