The American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 516 on April 2. The opinion focused on ABA Model Rule of Professional Conduct 1.16(b)(1), which permits a lawyer to voluntarily end, or seek to end, an ongoing representation if “withdrawal can be accomplished without material adverse effect on the interests of the client.”
The ethics committee noted 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.
But it explained that a lawyer may be able to remediate the adverse effects and withdraw in a way that doesn’t run afoul of 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 committee wrote in the opinion.
Declining client matters is less restricted, the ABA committee noted. It stated lawyers can ordinarily decline accepting an engagement for almost any reason, including payment terms, client personality, opposing parties, judges, merits of the litigation and more.
“But once an engagement is accepted, could these concerns be sufficient reason for the lawyer to unilaterally terminate the representation?” the committee asked in the opinion.
When Rule 1.16 May Allow Withdrawing
The ethics committee noted that clients can discharge lawyers at any time, with or without cause as long as they adhere to the payment terms for the lawyer’s services. But Model Rule 1.16 limits the circumstances under which a lawyer may end their representation and some instances where a lawyer must end the representation.
“Simply put, getting out of a matter can be a lot harder than getting in,” the committee wrote.
There are four instances where a lawyer must end a representation: when the representation will result in violation of the Rules of Professional Conduct or other law; the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; the lawyer is discharged; or the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud.
Voluntarily ending a representation can only be done if it won’t harm the interests of the client or if there’s good cause to end the representation otherwise. “Rule 1.16(b)(2)–(b)(6) enumerates circumstances constituting good cause and Rule 1.16(b)(7) explains that ‘other good cause’ may exist,” the committee wrote.
The committee only offered guidance on terminating representation when it’s not mandatory and not permitted under the circumstances lifted in Rule 1.16(b).
In the opinion, the ethics committee addressed the meaning of the rule’s phrase “material adverse effect on the interests of the client” and provided a framework for analyzing if or when such an effect would prevent a lawyer from withdrawing.
Generally, the committee concluded that “a material adverse effect is one which, despite a lawyer’s efforts to remediate negative consequences, will significantly impede the forward progress of the matter, significantly increase the cost of the matter and/or significantly jeopardize the client’s ability to accomplish the objectives of the representation.”
To avoid this outcome, the committee noted that withdrawing wouldn’t harm the client if their representation has barely gotten off the ground, if co-counsel can successfully complete the remaining work or when there is no ongoing or imminent matter at the time the lawyer withdraws.
‘Hot Potato’ and a Dissent
But the committee cautioned that lawyers can’t withdraw to represent the other side of the dispute.
“In the context of litigation, some courts have held that without the client’s consent, a lawyer may not withdraw from a representation to litigate against the now-former client,” the committee wrote. “Lawyers who end a representation for this reason have sometimes been disqualified from representing the new client. The so-called ‘hot potato’ rule or doctrine comes from [Picker International, Inc. v. Varian Associates, Inc.], where the court concluded, ‘a firm may not drop a client like a hot potato, especially if it is in order to keep happy a far more lucrative client.’”
“The ‘hot potato’ principle is derived from neither Rule 1.16 nor any other professional conduct rule,” the committee clarified. “Rather, the principle is an extension of the common law duty of loyalty and the need to preserve public confidence in the bar.”
Two committee members, Brian Faughnan and Wendy Muchman, dissented in part from the opinion.
“[The] portion seeking to argue why the ethics rules do not prohibit a lawyer from firing one client in order to sue another client is something that we fear will prove more harmful than helpful to lawyers,” they wrote.
Faughnan and Muchman also asserted the “hot potato” portion of the opinion is incomplete, and said that the opinion avoids offering guidance on mandatory withdrawal under Rule 1.16(a). They added that the opinion also doesn’t offer guidance for transactional lawyers.