Engagement agreements allowing a lawyer to withdraw when the client fails substantially to fulfill an obligation regarding the lawyer’s services

May 20, 2026

Engagement agreements allowing a lawyer to withdraw when the client fails substantially to fulfill an obligation regarding the lawyer's services

CHICAGO, May 20, 2026 - The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion today clarifying the permissible terms of an engagement agreement allowing a lawyer to withdraw when the client fails substantially to fulfill an obligation regarding the lawyer's services.

Rule 1.16(b)(5) of the ABA Model Rules of Professional Conduct permits a lawyer to withdraw from a representation, or to seek the tribunal's permission to do so, 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." Opinion 523 clarifies how these obligations can be formalized in engagement agreements and the ethical limitations on such provisions.

This provision is ordinarily invoked when a client fails to fulfill an obligation regarding payment of legal fees and expenses. The engagement agreement may memorialize additional obligations of the client, both obligations that are otherwise implicit such as the client's truthful cooperation with the representation, and further obligations insofar as they are not forbidden by the rules, other law (including court rules) or public policy. A client's persistent failure to fulfill obligations regarding the lawyer's services, including obligations unrelated to payment of fees and expenses, may constitute a basis for withdrawal if the procedural requirements of Rule 1.16(b)(5) are met. This opinion does not address, and is not intended to limit, a lawyer's ability to withdraw under any other provisions under Rule 1.16(a) or (b).

Within ethical limits, the engagement agreement may also set forth obligations of the client that are not otherwise implicit. For example, a lawyer may include a provision in which the client agrees not to make an audio or a video recording of communications between the lawyer and the client, or not to discuss the lawyer or the representation on social media during the course of the representation.

The engagement agreement, however, may not impose obligations on the client that the Rules of Professional Conduct or other law or public policy forbid. For example, the engagement agreement may not include the client's promise not to later pursue a disciplinary complaint or bar grievance against the lawyer or law firm. Likewise, the engagement agreement cannot be used to require the client to agree to terms that are expressly contrary to the model rules. For example, the engagement agreement may not obligate the client to accept a settlement recommended by the lawyer, or to reject a settlement that the lawyer disapproves. Such a provision would conflict with Model Rule 1.2(a).

A lawyer's right to withdraw is subject to several ethical guardrails. Under Rule 1.16(c), if a matter is in litigation, the lawyer must often seek court permission to withdraw. The court retains the ultimate discretion to grant or deny this request. Lawyers must take "reasonably practicable" steps to protect the client's interests during the transition, such as giving adequate notice and surrendering the client's file. An engagement agreement cannot create new grounds for withdrawal beyond those listed in Rule 1.16. For instance, a lawyer cannot contract for the right to withdraw just to take on a more lucrative case.

Although the model rules do not require a lawyer to include information in the engagement agreement regarding the grounds on which the lawyer must, or may, withdraw from the representation, a lawyer may include such information in the engagement agreement as long as it is presented in a manner that is accurate and not misleading. The model rules appropriately forbid lawyers from misleading clients and prospective clients, including in an engagement agreement, regarding their respective rights and obligations.

The Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA Model Rules of Professional Conduct. Other recent ABA ethics opinions are available here.