ABA Ethics Opinion 516 and Permissive Withdrawal

On April 2, 2025, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 516, offering interpretive guidance on a frequently misunderstood part of the ABA’s Model Rules of Professional Conduct—the standard for permissive withdrawal under Rule 1.16(b)(1). Part (b)(1) of Rule 1.16 permits a lawyer to withdraw from representation in an active matter without client consent if it can be done without “material adverse effect on the interests of the client.”

Withdrawal nearly always causes some disruption to the client, and while Opinion 516 recognizes this, it focuses on determining when that disruption crosses the line into an ethics rule violation. In other words, when does withdrawal cause “material adverse effect” on the client’s matter? The opinion seeks to answer that question by clarifying what should be considered “material” in this context.

As part of the answer to that question, and for the first time, the ABA formally states in the opinion that under Rule 1.16(b)(1), a lawyer’s reason or motivation for withdrawal is irrelevant. Instead, the focus is solely on the materiality of the adverse effect on the client’s legal interest and whether the withdrawal will cause the client significant harm.

The opinion fills a long-standing gap in ABA guidance by confirming that a lawyer may ethically withdraw for strategic or business reasons, such as making room for a new client, as long as the existing client is not materially harmed. This interpretation sets (b)(1) apart from the other six reasons for permissive withdrawal under Rule 1.16(b), each of which considers the lawyer’s justification and reasons for withdrawal.

ABA Model Rule 1.7 (concurrent client conflicts) and ABA Model Rule 1.9 (duties to former client) are also relevant to this analysis through the application of judicial doctrines and may come into play depending on the lawyer’s next engagement.

Judges: The Last Word

The opinion acknowledges that while Rule 1.16(b)(1) provides an ethical pathway for withdrawal, when a matter is in litigation, courts retain wide discretion to disqualify lawyers for conflicts of interest on fairness or policy grounds, even when there is no ethics rule violation. In other words, lawyers who ethically withdraw under Rule 1.16(b)(1) to represent a new or different client can still find themselves disqualified from that representation under the rules regarding conflicts of interest.

Two judicial doctrines briefly discussed in the opinion and dissent are relevant here. The first is the “hot potato” doctrine, a court-made rule prohibiting lawyers from dropping one client to represent another in a matter where the two clients’ interests conflict. The opinion distances itself from the hot potato doctrine, noting that it is not part of the Model Rules and arises from judicial interpretations of loyalty, not the ethics rules. Still, lawyers should be aware that courts may invoke this doctrine even when a withdrawal is ethically permissible under Rule 1.16(b)(1). In short, the hot potato doctrine is not about whether a lawyer may withdraw under the ethics rules but whether a court will recognize that withdrawal when analyzing conflicts or disqualifying counsel.

As the dissent notes, the opinion largely avoids discussing an important carve-out from the hot potato doctrine: the “thrust-upon” exception. This exception applies when a conflict arises through no fault of the lawyer, such as when two clients merge or a new party is added to a matter. In those cases, courts have allowed lawyers to drop one client, often the one with the weaker or less central relationship, without being penalized under hot potato principles. While the ABA correctly distinguishes its ethics opinion from court-made disqualification rules, the dissent notes that the lack of treatment of this well-known exception is a missed opportunity to give lawyers relevant guidance.

While the dissent, written by two committee members, does not directly undermine the opinion’s main conclusions, it does point out these and other areas in which the opinion’s scope is somewhat limited and is worth reading.

Finally, every litigator seeking permissive withdrawal from an active matter in court must not lose sight of the most basic requirement of any such withdrawal—something that the opinion only mentions in a footnote. Under Model Rule 1.16(c), “[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

When a lawyer seeks to withdraw from representing a client in a court case, the judge will always have the last word, regardless of what the ethics rules or opinions say.

Conclusion

Formal Opinion 516 confirms that withdrawal is ethically permissible under Rule 1.16(b)(1) if the client will not suffer material harm, regardless of the lawyer’s motivation. That includes withdrawing to avoid a conflict or to take on a new client since the lawyer’s reason for the withdrawal is not part of the “material harm” analysis.

However, when reading the opinion and dissent together, the message for lawyers is clear: If you want to withdraw from an active representation, you must comply with Rule 1.16(b)(1) but should always consider how courts and the client will view your decision and plan accordingly. Client communication, proper documentation, transition planning, and attention to conflict analysis remain critical even if the withdrawal is allowed under the ethics rules.

Lawyers should read the full text of Formal Opinion 516 and, because ethics opinions and rules differ across jurisdictions, should know and follow the relevant ethics rules, opinions, and case law in the jurisdictions where they practice.