Can a lawyer's engagement agreement require the client to cooperate and let the lawyer withdraw if the client does not?

Plain-English summary

The opinion addresses how an engagement agreement can define a client's obligations and serve as a basis for withdrawal under Rule 1.16(b)(5), which permits withdrawal when "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." Although this is most often invoked for nonpayment of fees, the committee explains it reaches other obligations as well.

On the content of engagement agreements, the opinion holds that a lawyer may memorialize obligations that are otherwise implicit, such as the duty to cooperate, to communicate, to provide truthful information, and to produce documents within the client's control. A lawyer may also add obligations that are not implicit, so long as they are not forbidden; the opinion gives examples of clauses barring the client from audio or video recording lawyer-client communications, or from discussing the representation on social media during the matter. But the agreement may not impose forbidden terms: it may not bar the client from filing a bar grievance, and it may not require the client to accept or reject a settlement, because Rule 1.2(a) gives the client the unwaivable right to decide whether to settle.

On withdrawal, the opinion holds that a substantial failure to meet a fee or cooperation obligation, after reasonable warning, can justify withdrawal, while a "trivial" or "insubstantial" failure (its example is occasional tardiness with a reasonable excuse) does not. The obligation must be one "regarding the lawyer's services"; the opinion notes a client's failure to repay an unrelated prior debt to the lawyer would not qualify.

Most importantly, the opinion holds that Rule 1.16(a) and (b) "establish the exclusive grounds" for withdrawal, so an engagement agreement "may not expand on the grounds for withdrawal" by securing advance consent to withdraw in circumstances Rule 1.16 does not contemplate, such as leaving for a more lucrative engagement regardless of material adverse effect. An agreement may describe the Rule 1.16 grounds, but only "in a manner that is accurate and not misleading." It may not imply the lawyer can withdraw unilaterally where a tribunal's permission is required under Rule 1.16(c), omit the Rule 1.16(d) duty to protect the client's interests, dispense with the "reasonable warning" requirement, imply a withdrawal motion may disclose information protected by Rule 1.6, or require a blanket irrevocable advance consent to future withdrawal.

In practice

Under this opinion, a lawyer drafting an engagement agreement may spell out the client's obligations, both the implicit duties to cooperate, communicate, and provide truthful information and documents, and additional permissible terms such as no recording of communications or no social-media discussion of the matter during the representation. The opinion treats a client's substantial, persistent breach of such an obligation, after reasonable warning, as a valid Rule 1.16(b)(5) basis to withdraw or seek leave to withdraw; a trivial breach is not, and an obligation unrelated to the lawyer's services (like an old personal debt) is outside the rule.

The opinion sets firm limits on drafting. The agreement cannot impose terms the Rules forbid (no waiver of the right to file a grievance, no contractual control over the settlement decision), cannot add withdrawal grounds beyond Rule 1.16, and cannot describe withdrawal in a way that misleads the client, for example by implying unilateral withdrawal where court permission is required, omitting the duty to protect the client's interests, skipping the reasonable-warning step, or implying the lawyer may reveal Rule 1.6 information in a withdrawal motion.

Common questions

Q: Can my retainer require the client to cooperate and provide documents, and let me withdraw if they do not?

A: Per the opinion, yes. A lawyer may memorialize the client's duty to cooperate, communicate, and provide truthful information and documents, and a client's substantial failure to do so after reasonable warning can support withdrawal under Rule 1.16(b)(5).

Q: Can I include a clause barring the client from recording our calls or posting about the case online?

A: The opinion treats these as permissible non-implicit obligations, citing them as examples, because public communications can frustrate the representation or undermine privilege. They must still be presented accurately and may not be used to circumvent Rule 1.16's withdrawal requirements.

Q: Can the engagement agreement require the client to accept a settlement I recommend?

A: No. The opinion concludes such a term conflicts with Rule 1.2(a), which gives the client the unwaivable right to decide whether to settle, so it cannot be imposed and cannot be a basis for withdrawal.

Q: Can I add extra grounds for withdrawal, like leaving for a better-paying client?

A: Per the opinion, no. Rule 1.16(a) and (b) are the exclusive grounds, so the agreement may not authorize withdrawal in circumstances Rule 1.16 does not allow, including leaving for a more lucrative matter without regard to material adverse effect.

Q: Can the agreement say I may withdraw whenever I choose?

A: No. The opinion holds the agreement may describe the Rule 1.16 grounds but must be accurate and not misleading; it may not imply unilateral withdrawal where a tribunal's permission is required, omit the duty to protect the client on withdrawal, or dispense with the reasonable-warning requirement.

Background and rules framework

The opinion interprets Model Rule 1.16 (declining or terminating representation), focusing on the permissive ground in 1.16(b)(5) and reading it against the mandatory grounds in 1.16(a), the tribunal-permission requirement in 1.16(c), and the client-protection duty in 1.16(d). It applies Rule 1.5(b) and (c) (communicating the scope and basis of the fee, contingent-fee writings) on engagement-agreement content, Rule 1.2(a) (the client's authority over objectives and the settlement decision), and the anti-deception rules, Rule 8.4(c) and Rule 7.1, on not misleading clients. It cross-references Formal Opinion 516 (permissive withdrawal and material adverse effect), Formal Opinion 519 (disclosure in a withdrawal motion), and Formal Opinion 476 (withdrawal for nonpayment).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.16 (declining or terminating representation), including 1.16(b)(5), (a), (c), (d)
• ABA Model Rule 1.5(b) and (c) (fee communications and contingent-fee writings)
• ABA Model Rule 1.2(a) (client's authority, including the settlement decision)
• ABA Model Rule 8.4(c) and 7.1 (no dishonest or misleading communications)

Other opinions cited:

• ABA Formal Op. 516 (2025): permissive withdrawal and "material adverse effect"
• ABA Formal Op. 519 (2025): disclosure of confidential information in a withdrawal motion
• ABA Formal Op. 476 (2016): confidentiality when withdrawing for nonpayment of fees
• NY State Bar Op. 719 (1999): engagement-agreement terms must not mislead the client about withdrawal

See also

• ABA Formal Op. 516: Material Adverse Effect and Permissive Withdrawal
• ABA Formal Op. 476: Confidentiality and Withdrawal for Nonpayment of Fees
• ABA Formal Op. 519: Confidentiality in a Motion to Withdraw

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-523.pdf