The Client-Lawyer Relationship · 10-16% of the exam
5.2.1When to exit: mandatory and permissive withdrawal (Rule 1.16(a)–(b))
On this page
- Rule 1.16(a)–(b) — Mandatory and permissive withdrawal
Why
Rule 1.16 balances protecting clients from abandonment against ensuring lawyers need not assist in wrongdoing, drawing a bright line between grounds that require departure and grounds that merely permit it.
Plain English
A client may discharge a lawyer at any time, with or without cause, and fee agreements may not penalize that right — subject to the qualifications Comments [5] and [6] add: whether appointed counsel can be discharged may depend on applicable law, and a client with decision-making limitations may lack the legal capacity to discharge.
A lawyer must decline or withdraw in four specified situations and may withdraw in seven others; where applicable law requires notice to or permission of a tribunal, the lawyer must comply with it before terminating.
Rule
Rule 1.16(a)–(b) — Mandatory and permissive withdrawal
Client's right of discharge (Comment [4]): at any time, with or without cause — subject to Comment [5] (whether a client can discharge appointed counsel may depend on applicable law) and Comment [6] (a client whose decision-making limitations cannot be adequately alleviated may lack the legal capacity to discharge the lawyer). Penalty clauses and liquidated-damages provisions triggered by client discharge are unenforceable — a civil consequence supplied by case law, not by Rule 1.16, which states a disciplinary prohibition only. The client remains liable in quantum meruit (the fair value of services actually rendered) for work already done — again a case-law consequence, not one Rule 1.16 states.
Rule 1.16(a) — Mandatory: the lawyer shall not represent a client or, where representation has commenced, MUST withdraw when:
- Continuing the representation would itself require the lawyer to violate the MRPC or other law. (A client asking for something impermissible does not alone require withdrawal; the lawyer must withdraw only when continuing as structured would itself require the violation.) Comment [2] draws the line at the client's word: a lawyer ordinarily must decline or withdraw when the client demands that the lawyer engage in conduct that is illegal or violates the Rules or other law, and is not obliged to decline or withdraw merely because the client suggests such a course.
- The lawyer's mental or physical condition materially impairs the ability to represent the client.
- The client discharges the lawyer. Mandatory withdrawal also triggers when a court permits substitution of counsel — client-initiated discharge is not the only trigger under this ground.
- After the lawyer has explained the limits on assisting, the client or prospective client seeks to use or persists in using the lawyer's services to commit or further a crime or fraud (money laundering included).
Rule 1.16(b) — Permissive withdrawal — the lawyer MAY withdraw:
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Withdrawal can be accomplished without material adverse effect on the client's interests.
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The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent.
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The client has already used the lawyer's services to perpetrate a crime or fraud.
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The client insists on taking action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
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The client
- fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services (fees included) AND
- has been given a reasonable warning that withdrawal will follow if the obligation is not met.
Both elements are required.
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The representation will result in an unreasonable financial burden on the lawyer, or the client's own conduct has rendered the representation unreasonably difficult.
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Other good cause exists.
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2023 amendment — duty to inquire (Rule 1.16): Before accepting a matter and throughout the representation, a lawyer must inquire into and assess the facts and circumstances of each representation — with the client's identity, including whether the client is a natural person or an entity and, if an entity, its beneficial owners, among the factors that set how much inquiry the risk requires (Comment [2]) — to determine whether the lawyer may accept or continue. The duty sits in paragraph (a)'s opening sentence, not on the list of grounds below it; the four grounds are among the things the inquiry may turn up. The duty targets money-laundering and related client-use risks; failure to make a reasonable inquiry when red flags surface can itself require declining or withdrawing.
Example 1
Ex. 1
Criminal defense attorney Omar discovered mid-trial that his client had fabricated the alibi. Continuing to present it would have required sponsoring false testimony, making mandatory withdrawal plausible. But the matter was before a tribunal, and the applicable law required the court's permission, so that was Omar's first obligation; the court's ruling determined whether withdrawal was actually available. Grant Omar every mandatory ground he could want — the court still rules on his exit before he takes it.
Example 2
Ex. 2
Sara discovered her client had directed her to incorporate falsified expense figures into a damages calculation and concluded she was obligated to withdraw. The ground is permissive, not mandatory. A client who has already used the lawyer's services to perpetrate a fraud appears at Rule 1.16(b)(3), on the permissive list. Sara may withdraw; she isn't required to. Push Sara's ground toward the mandatory list; Rule 1.16(b)(3) is where it stays.
The exam will present egregious client misconduct and suggest mandatory withdrawal. Mandatory grounds are limited to the four listed in Rule 1.16(a); compelling facts alone don't move a permissive ground onto the mandatory list.
The exam will ask about withdrawal for unpaid fees. Nonpayment alone is insufficient; the client must have failed substantially to fulfill the obligation and the lawyer must have given a prior reasonable warning.
The exam will suggest a law firm can't be discharged by the client. Every lawyer in the firm, and the firm as an entity, may be discharged at any time, with or without cause — subject to the appointed-counsel and capacity qualifications in Comments [5] and [6].
Tip
Questions · 2
Q 01ch05-e06
Question 1 of 2 · Rule 1.16(b)(4)
Attorney represents Manufacturer, a maker of industrial fasteners, in a wrongful-death suit brought by the family of a warehouse worker. After reviewing the internal engineering files, Manufacturer instructs Attorney to build the defense around the argument that the dead worker ignored a posted warning and was therefore the sole cause of his own death. Nothing in the files contradicts that theory and the argument is entirely lawful. Attorney finds the strategy morally distasteful, has said so, and the two now have a fundamental disagreement about how the case should be tried. Attorney would prefer to hand the file to another firm. Must Attorney withdraw from the representation?
Keys 1 to 4 choose.