Concept
The Permissive Withdrawal Rule
Permissive withdrawal: when the lawyer may withdraw
When a Lawyer May Withdraw
The Permissive Withdrawal Rule
Rule 1.16(b) turns on a single word. It begins, “Except as stated in paragraph (c), a lawyer may withdraw from representing a client if,” and then lists the grounds that qualify.1 Paragraph (a), by contrast, speaks the language of duty: a lawyer shall decline or withdraw when the representation will violate the rules of professional conduct or other law, when the lawyer’s physical or mental condition materially impairs the ability to represent the client, or when the lawyer is discharged.2 May gives the lawyer an option, and shall does not. This section maps paragraph (b); the grounds themselves follow, one section at a time.
The two paragraphs also divide power between lawyer and client. A discharge triggers the lawyer’s duty to withdraw under paragraph (a), so a client never needs a ground to end the relationship.3 The lawyer does, and paragraph (b) supplies the list.
The second scene leaves paragraph (b) behind. A lawyer may not continue assisting a client in conduct the lawyer first supposed legal but now discovers is criminal or fraudulent, so withdrawal may be required, not merely permitted. The lawyer may not reveal the wrongdoing except where Rule 1.6 allows, but must avoid furthering its purpose, for example by suggesting how it might be concealed.4 Sorting a problem therefore begins with paragraph (a), and paragraph (b) governs the cases that remain.
Once paragraph (a) is out of the picture, paragraph (b) offers two routes. One court, summarizing how commentators read RPC 1.16, found two circumstances: withdrawal for any reason, so long as no material adverse effect on the client occurs, and withdrawal for good cause, such as financial hardship, even when the client is materially affected.5 The first route is the rule’s opening ground, which allows withdrawal that can be accomplished without material adverse effect on the interests of the client.6 The second runs through the good-cause grounds. The opinion quotes the rule joining the two with an or: a lawyer may withdraw if withdrawal can be accomplished without material adverse effect on the client’s interests, “or if . . . the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”7
That or is the point students most often miss. The grounds are alternatives, so a lawyer needs only one, and the harm-free condition qualifies only the first.8 A student who carries it into every ground will conclude, wrongly, that a lawyer can never leave when leaving would hurt the client. The financial-burden ground refutes that conclusion, because good cause supports withdrawal even when the client will feel the loss.9 The grounds on client fraud and misuse of the lawyer’s services, treated below, are likewise separate alternatives. A harm-free condition on every ground would let a client’s own conduct hold the lawyer in place.
Even a satisfied ground yields only permission. The opening phrase of paragraph (b), “Except as stated in paragraph (c),” reserves the tribunal’s power over the lawyer’s exit.10 The same opinion put the consequence plainly: under RPC 1.16(c), withdrawal is entirely within the court’s discretion, and a court may refuse to allow it despite a showing of good cause.11 A lawyer with good cause and a pending matter must therefore reckon with the tribunal, a subject the section on tribunal permission takes up.
Paragraph (b) answers only whether the lawyer may leave. How the lawyer leaves, through notice, time to find other counsel, refunds, and files, is a separate set of duties covered in the exit sections below.
State rules number these grounds differently, and opinions often reproduce older language. The opinion quoted above numbers the financial-burden ground (5).12 The Model Rule places it at (b)(6), with other good cause at (b)(7).13 Identify a ground by what it says, not by its number. Read “must withdraw” with the same care. The Model Rule makes withdrawal mandatory in paragraph (a), so when an opinion speaks of a duty to leave, ask whether the facts fall within a paragraph (a) situation or the court is describing a paragraph (b) ground loosely.