Engagement Letters Describing a Client’s Obligations May Facilitate An Attorney’s Withdrawal From the Representation
Even in jurisdictions where they are not required by law or the ethics rules, engagement letters have become a key component in every law firm’s toolkit. They have also become increasingly detailed, addressing issues ranging from client identity, describing (and sometimes limiting) the scope of the engagement and fee arrangements, to conflict waivers, dispute resolution and file retention. Surprisingly, however, the rules of professional conduct provide scant guidance on what a law firm can - or must - include in an engagement letter. A recent ABA Ethics Opinion helps fill that gap in the context of discussing when a law firm may permissibly withdraw from an engagement.
Under ABA Model Rule of Professional Conduct 1.16(b)(5) “a lawyer may withdraw from representing a client if… the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable waring that the lawyer will withdraw unless the obligation is fulfilled.” The most common situation in which this Rule is invoked is where a client persistently fails to pay for the lawyer’s services. Opinion 523, however, clarifies that the rule is not so limited. There are certain client obligations which the Opinion notes are “implicit in the representation,” such as the obligation to cooperate with the representation, communicate with counsel and provide truthful information.
The Opinion then goes on, however, to provide examples of client obligations which are not implicit, such as an agreement that the client will not make an audio or video recording of communications between the lawyer and the client; or an agreement not to discuss the representation on social media, and recommends that lawyers consider expressly including such obligations in their engagement letters. In this new, emerging era of artificial intelligence, I can think of at least one other obvious subject law firms might address: an agreement that the client will not upload documents that are subject to a confidentiality agreement with an opposing party into an unsecured AI platform.
The Opinion concludes that a client’s violation of either an implicit or explicit obligation may constitute grounds for withdrawing from an engagement, subject to certain limitations: (1) engagement agreements may not impose obligations that the applicable rules of professional conduct or other law or public policy prohibit, such as a client’s promise not to pursue a disciplinary complaint against her lawyer; (2) a lawyer may not withdraw if the client fails to comply with an obligation that is unrelated to the representation, such as the failure to pay a pre-existing debt; (3) a lawyer may not withdraw based on a client’s non-compliance with a trivial obligation, such as routinely arriving late for scheduled meetings and (4) the lawyer must give reasonable warning that he or she intends to withdraw if the client obligation remains unfulfilled. Finally, the Opinion reminds us that a lawyer seeking to withdraw must comply with the procedures set forth in the applicable rules. For example, nearly all rules of professional conduct require that a lawyer seek permission from the relevant tribunal before withdrawing from a pending litigation matter, unless successor counsel simultaneously files an appearance.
Lawyers seeking to withdraw from a representation must also comply with their obligations to preserve client confidences and privileged information. For guidance on that important subject, see ABA Formal Opinion 519 (December 3, 2025)
