Ending Representation – What “Material Adverse Effects” Prevent Permissive Withdrawal?

On April 2, 2025, The American Bar Association published ABA Formal Opinion 516. This Opinion discussed Model Rule of Professional Conduct, or its equivalent, SCR 3.130 (1.16) Declining or Terminating Representation. Specifically, the Opinion discussed Subsection (b)(1), which states:

Formal Opinion 516 explains that a lawyer’s withdrawal would have a “material adverse effect on the interests of the client” if it 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 notes that “a lawyer may be able to remediate these adverse effects and withdraw in a manner that avoids or mitigates the harm that the rule seeks to prevent.” It also provides that the “lawyer’s motivation for withdrawal is not relevant under Model Rule 1.16(b)(1). Therefore, under the model rules, if the lawyer’s withdrawal does not cause ‘material adverse effect’ to the client’s interests in the matter in which the lawyer represents the client, a lawyer may withdraw to be able to accept the representation of a different client, including to avoid the conflict of interest that might otherwise result.”

The opinion concludes that, “Ideally, lawyers will exercise care and thoughtfulness in deciding whether to accept an engagement and will generally refrain from ending a relationship without good cause, whether out of a sense of obligation, loyalty to the client or professional pride. But even careful lawyers may occasionally desire to end a representation for reasons other than those that constitute “good cause” under Rule 1.16.”

Accordingly, the new ABA Opinion clearly shows withdrawing from representation is permissible, but not to be taken lightly. The following are some key considerations that Lawyers Mutual would like for you to keep in mind when contemplating terminating representation of a client.

Key Considerations of Termination of Representation

• Ethical Considerations
• SCR 3.130 (1.16) Declining or Terminating Representation
• Mandatory withdrawal (Rule 1.16(a)): Required when representation will result in violation of law or ethical rules, attorney becomes physically or mentally unable to continue, or the client discharges the lawyer.
• Permissive withdrawal (Rule 1.16(b)): Permitted under certain conditions, such as:
• Client insists on criminal/fraudulent conduct.
• Client has used attorney’s services to commit a crime/fraud.
• Representation is unreasonably difficult (e.g., client uncooperative).
• Other good cause exists.
• BUT, withdrawal is only permitted if it can be done without material adverse effect on the client’s interests.
• Avoid Material Adverse Effects
• Avoid withdrawing during critical phases, such as imminent or upcoming hearings, deadlines, or trial, unless absolutely necessary.
• Provide reasonable notice to the client so that they can retain new counsel.
• Assist with the transition, which may include:
• Turning over case files and documents;
• Cooperating with successor counsel; and/or
• Explaining the procedural posture of the case.
• Do not assert a lien on the file or threaten action even if the client owes you fees for services rendered. This was only cause you more headache down the road.
• Seek Court Approval
• If the case is pending before a court, leave of court is required in order to lawfully withdraw from a case.
• File a motion to withdraw and serve it on the client and all parties.
• Include a statement of why the withdrawal is necessary, and whether the client consents. But be careful not to disclose client confidences.
• If for no other reason to withdraw, cite SCR 3.130 (1.16)(a)(1) which states in pertinent part, “A lawyer shall not represent a client or, where representation has commenced shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law.”
• However, Judges may still deny the motion to withdraw if it would prejudice the client or disrupt the proceedings.
• Communication with Client
• Document reasons for withdrawal in writing in your file.
• Explain any potential consequences of withdrawal and any pending deadlines with the client and be sure to notate those discussions in writing.
• Provide referrals (more than one attorney) if possible, or be sure to give the client enough heads up of your intent to withdraw so that they can have time to locate new counsel.
• Client’s Best Interest
• Even during withdrawal, the attorney still must:
• Protect the client’s confidentiality (SCR 3.130 (1.6) Confidentiality)
• Take reasonable steps to avoid foreseeable harm to the client.
• Maintain duty of loyalty and confidentiality even after the withdrawal is approved and effective.