Can a lawyer's engagement letter bar the client from recording their communications, and let the lawyer withdraw if the client records anyway?

Plain-English summary

The inquirer wants to include a "No Recording Clause" in his retainer agreements, barring each client from recording communications between lawyer and client without the other's informed consent, and wants to reserve the right to withdraw if the client violates the clause. He asks whether the clause is permitted, whether he may withdraw for a violation, and whether the agreement may provide the client's advance consent to that withdrawal.

The opinion reasons that because nothing in the Rules expressly prohibits or authorizes a no-recording clause, a retainer agreement may include one, subject to the provisions of Rule 1.16. The opinion explains that Rule 1.16(b) sets out mandatory withdrawal, Rule 1.16(c) sets out permissive withdrawal, Rule 1.16(d) requires the lawyer to seek the tribunal's permission where required and to continue if the tribunal so orders, and Rule 1.16(e) requires steps to avoid foreseeable prejudice to the client. Subject to those conditions, the opinion concludes withdrawal based on a violation of the clause would be permissible, pointing to grounds such as Rule 1.16(c)(7) (the client renders the representation unreasonably difficult) and Rule 1.16(c)(12) (other good cause).

The opinion cautions that a violation will not always justify withdrawal: a single inadvertent or immaterial recording is unlikely to meet the conditions, while multiple minor violations or a single deliberate or material violation are more likely to. Drawing on N.Y. State 719 (1999), the opinion applies two principles: an engagement letter may not authorize withdrawal where the rule would not allow it, and may not mislead the client about the lawyer's obligation to continue absent a permissible ground (or in the face of a tribunal's order to continue). The opinion concludes the lawyer must seek the tribunal's permission under Rule 1.16(d) before withdrawing and must tell the client that permission will be required, so the agreement may not present withdrawal as within the lawyer's unfettered discretion.

In practice

Under this opinion, a retainer agreement may include a no-recording clause and may provide for withdrawal if the client violates it, but the agreement must not misstate when withdrawal is allowed or operate as the client's irrevocable advance consent to withdrawal. Per the opinion, whether a particular breach justifies withdrawal is a case-by-case question under Rule 1.16, and in a matter before a tribunal the lawyer must seek the tribunal's permission under Rule 1.16(d) and inform the client of that requirement.

Common questions

Q: Can a retainer agreement bar the client from recording calls with the lawyer?

A: Per the opinion, yes. Because nothing in the Rules prohibits or authorizes a no-recording clause, a retainer agreement may include one, subject to the provisions of Rule 1.16.

Q: Can the lawyer automatically withdraw if the client records anyway?

A: Per the opinion, not automatically. Withdrawal is permissible only if the conditions in Rule 1.16 are met; a single inadvertent or immaterial violation is unlikely to qualify, while deliberate or repeated violations are more likely to, and a tribunal's permission must be sought where required.

Q: Can the agreement contain the client's advance consent to withdrawal?

A: Per the opinion, no, not as irrevocable advance consent. The agreement may not serve as the client's irrevocable advance consent to withdrawal and may not mislead the client into thinking the lawyer has unfettered discretion to withdraw.

Background and rules framework

The opinion interprets New York Rule 1.16 (declining or terminating representation), including subsections (b) (mandatory withdrawal), (c) (permissive withdrawal), (d) (tribunal permission), and (e) (steps to avoid prejudice). These correspond to ABA Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.16(b), (c), (d) & (e)
• ABA Model Rule 1.16 (analogue)

Other opinions cited:

• N.Y. State 719 (1999): engagement-letter withdrawal provisions may not authorize impermissible withdrawal or mislead the client

See also

• NYSBA Ethics Op. 1258A: Passing on Credit Card Fees
• LACBA Op. 498: Disclosure of Client Fraud in Fee Dispute

Source

• Landing page: https://nysba.org/ethics-opinion-1270/