Concept
Withdrawal Without Material Harm
Permissive withdrawal: when the lawyer may withdraw
Withdrawal Without Material Harm
Rule 1.16(b)(1) gives a lawyer the broadest way out of a representation: the lawyer may withdraw if “withdrawal can be accomplished without material adverse effect on the interests of the client.”1 The rule asks one question, what leaving does to the client, and it never asks why the lawyer wants to leave. Commentary reads it that way, describing the lawyer's freedom to withdraw “for any reason” when that condition is met.2 A lawyer may therefore leave because the matter has lost its appeal, because the client is difficult, or for no stated reason, and each motive counts the same because none enters the test. Students who expect every withdrawal to rest on client misconduct or lawyer hardship misjudge this ground, which requires neither.
The rule blocks the lawyer's exit only when the adverse effect on the client is material, and the effect is measured on the client's position, not on the lawyer's convenience. Courts look to considerations such as how close the matter is to a decisive event and how readily the client can find other counsel. In Haines v. Liggett Group, the court, citing earlier authority, said that withdrawal “depends upon such considerations as proximity of the trial and possibility for the client to obtain other representation.”3 The same considerations explain why the ground is especially likely to be satisfied at the outset of a representation.4
The harm inquiry reaches everyone the lawyer is serving. In elder-law work that involves several family members, an attorney facing an ethical dilemma may consider withdrawing. The Model Rules answer that withdrawal still must not have a “material adverse effect” on the interests of the family members involved.5 The discomfort of staying does not answer that question, because the test remains what leaving does to the people the lawyer has been representing.
Satisfying (b)(1) does not finish the lawyer's work, because the lawyer must also make the end of the relationship clear. In Parallel Iron, LLC v. Adobe Systems, Inc., the court acknowledged that even the most active attorney-client relationship may be terminated at the lawyer's option when withdrawal causes no material adverse effect. It then added that a law firm's freedom to end the relationship and refuse further business does not make the firm free to sue its client before making clear that the relationship is over.6 The court put the responsibility on the firm, which must ensure there are no questions about the status of its current client relationships.7 A plain statement to the client that the engagement has ended belongs with the decision to leave. Later sections take up what a lawyer owes a client on the way out.
Paragraph (b)(1) also stands apart from the other grounds. When departure would harm the client, (b)(1) is unavailable, but that failure leaves the other grounds untouched. Withdrawal may rest instead on the client's persisting in a course of action the lawyer reasonably believes is criminal or fraudulent, or on the client's having used the lawyer's services to perpetrate a crime or fraud.8 It may also rest on the client's insisting on action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.9 Each of these has its own elements, and a lawyer who satisfies (b)(1) need not establish any of them. Two errors are worth avoiding on the exam: demanding a justification from a lawyer who is leaving harmlessly, and treating a failed harm-free withdrawal as proof that the lawyer must stay.
Because (b)(1) permits leaving for any reason, a discriminatory reason raises a further question. Even if Rule 8.4(g) does not reach decisions on whether to accept or continue with a client, the commentary warns that state or local anti-discrimination laws may preclude retention decisions that deliberately exclude clients from a protected group.10 A withdrawal that satisfies (b)(1) can therefore still violate other law.