Concept
Other Grounds for Withdrawal
Permissive withdrawal: when the lawyer may withdraw
Other Grounds for Withdrawal
The first four grounds in Rule 1.16(b) cover the harm-free exit, client crime or fraud, and a client’s repugnant objective. The last three, paragraphs (b)(5) through (b)(7), cover a representation that has broken down in practice. Under (b)(5), a lawyer may withdraw 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. Under (b)(6), a lawyer may withdraw when the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client. Under (b)(7), a lawyer may withdraw when other good cause for withdrawal exists.1 The lead-in to paragraph (b), “Except as stated in paragraph (c), a lawyer may withdraw from representing a client if,” governs all seven grounds.2 Each ground is therefore an alternative, and the lawyer needs to satisfy only one.
None of these grounds requires wrongdoing by the client. A client can be honest and still fall behind on fees, and can be cooperative and still make the matter far costlier than anyone expected. A representation runs on payment, cooperation, and trust, and when one of them fails, the lawyer’s continued presence serves little purpose. But the lawyer chose to take the matter, and the client relied on the engagement. Each ground therefore carries a qualifier. The word substantially and the warning requirement in (b)(5) screen out a late payment and give the client a chance to cure. The word unreasonable in (b)(6) keeps the ordinary cost and difficulty of litigation from becoming an exit. The word good in (b)(7) keeps the catch-all from swallowing the list. Without those filters, a lawyer could leave at the first inconvenience, and the client would bear the cost of having relied on the engagement.
The harm-free ground in (b)(1) applies only when “withdrawal can be accomplished without material adverse effect on the interests of the client.”3 None of these three grounds is expressly conditioned on the absence of harm to the client.4 Departure is still not costless. Each ground remains subject to a tribunal’s order to continue under paragraph (c)5 and to the duty under paragraph (d) to protect the client on exit, and later sections develop both.
State numbering varies, so follow the substance of a ground and not its number. The Model Rule places the unreasonable burden ground at (b)(6) and other good cause at (b)(7).6 The New Jersey and Massachusetts opinions below number the burden-or-difficulty ground (5) and good cause (6), because their versions of the rule are numbered differently.
Nonpayment After Warning
Rule 1.16(b)(5) permits withdrawal 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.”7 Three requirements must all be met: a substantial failure by the client, an obligation tied to the representation, and a warning, given before the lawyer leaves, that withdrawal will follow unless the client performs. The comment describes the typical case as a client who refuses to abide by an agreement relating to the representation, such as an agreement about fees or court costs or one limiting the objectives of the representation.8 The ground requires no wrongdoing by the client, and unlike the repugnance ground it says nothing about the lawyer’s opinion of the client’s goals. It remedies a breach of the engagement’s terms.
Most engagements rest on a bargain. The lawyer supplies time and skill, and the client supplies fees, reimbursement of costs, and adherence to whatever limits the two agreed on. A client who stops performing leaves the lawyer extending credit, and the unpaid balance grows with every hour of further work. A rule that forced the lawyer to stay until the client chose to pay would let the client keep the lawyer’s labor for nothing. The two qualifiers answer two different risks. Substantially guards against pretext, because a lawyer who wants out for another reason could seize on a minor lapse. The warning does subtler work. A client who is told that withdrawal is coming can pay, bargain for a schedule, or start looking for another lawyer, while a client who receives no warning learns of the problem when the lawyer is already gone. The warning turns the ground from an ambush into a chance to cure.
Fees and costs are the familiar obligations. The agreed limit is easier to overlook. When lawyer and client agreed that the engagement would pursue only certain aims, a client who later insists on going further has breached a term of the engagement. The lawyer may rely on (b)(5) after a warning without showing that the new objective is repugnant, a showing paragraph (b)(4) would demand. A debt unrelated to the representation, such as a personal loan the lawyer once made to the client, falls outside the ground, because the obligation must regard the lawyer’s services.
Each requirement can fail alone. A client who is months behind but has never been warned meets the first requirement and not the third, so the lawyer must warn before leaving. A client who is warned and then pays in full by the deadline defeats the ground from the other side, because the obligation has been fulfilled and nothing remains to withdraw over.
The warning must say what the lawyer will do. A reminder that an invoice is overdue tells the client about the debt and says nothing about withdrawal, so it does not satisfy a text that calls for a warning that the lawyer will withdraw unless the obligation is fulfilled.9 The word reasonable governs both content and timing. The notice should identify the obligation, state the consequence, and leave the client enough time to cure in practice. A warning delivered the day before a hearing sets a deadline no one could meet. The rule prescribes no form, but a dated letter or email is the best evidence that the warning was given and of what it said. The warning must also come first, since a notice that arrives together with the departure invites no cure at all.
Permission to leave for nonpayment is not permission to leave carelessly. Upon termination, the lawyer must still take reasonably practicable steps to protect the client’s interests, such as giving reasonable notice, allowing time to employ other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned.10 The warning and the exit notice do different jobs. The warning comes first and invites the client to cure, and the exit notice comes at the end and prepares the client to proceed without the lawyer. Confidentiality also survives. After withdrawal the lawyer must refrain from disclosing the client’s confidences except as Rule 1.6 provides, though the lawyer may give notice of the fact of withdrawal.11 A lawyer who satisfies (b)(5) also remains subject to paragraph (c), under which a tribunal may order continued representation despite good cause,12 so a lawyer owed substantial fees in a case before a court cannot assume that the client’s default alone frees the lawyer to leave. Paragraph (d) lets the lawyer keep papers only to the extent other law permits, and a later section takes up what that means for an unpaid fee.13
Unreasonable Burden
Rule 1.16(b)(6) lets a lawyer withdraw when “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”15 The sentence holds two grounds joined by or. The first looks to the lawyer’s finances and requires no misconduct by anyone. Because it speaks in the future tense, the lawyer may act on a sound forecast of the cost without waiting for the damage to be done. The second looks to the client’s conduct. The client must have rendered the difficulty, so a matter that is hard for some other reason does not qualify. One adverb, unreasonably, qualifies both prongs, and it decides most disputes under this ground.
The two prongs answer different problems. A lawyer’s time, money, and staff are limited, so a matter that consumes them in a way no one planned can leave the lawyer unable to serve this client or any other. Competent work also depends on the client’s cooperation, because a lawyer cannot prepare a case, advise on strategy, or meet deadlines without the client’s information and decisions, and a client who obstructs those things removes what the representation rests on. The qualifier guards the other flank. Every engagement carries expense, risk, and inconvenience that the lawyer accepted on taking the matter, and a client who relied on the engagement would pay for it if the lawyer could leave whenever the bargain turned out less attractive than expected. Unreasonably marks the line between a burden the lawyer took on and a burden the rule releases the lawyer from.
Contingent-fee practice shows that line from the failing side. A lawyer who is paid only if the client recovers has agreed to carry the risk that the case will run longer, cost more, or end worse than hoped, and that variance is part of what the lawyer is paid to bear.
Students often treat any costly or unpleasant matter as an unreasonable burden. The better reading of unreasonable asks whether the burden exceeds what a lawyer in that position would have anticipated and what the practice can reasonably absorb.
Haines v. Liggett Group shows the first prong in an extreme setting. The plaintiff’s firm, Budd Larner, sought to withdraw from litigation against well-funded defendants. The opinion quotes a description of the defense approach, under which aggressive depositions and discovery made these cases “extremely burdensome and expensive for plaintiffs’ lawyers, particularly sole practitioners,” because the cases were won by making the other side spend all of its money.16 The client, Haines, told the court she did not want it to force Budd Larner “to spend hundreds of thousands of dollars in a vain effort to match” the defendants’ ability to spend, and she asked the court to take firm control of the litigation.17 The setting shows what the first prong addresses, which is a gap in resources so wide that matching the other side meant spending enormous sums in vain. Haines’s request also suggests a second point. A burden that comes from how a case is being litigated may be one a court can reduce by managing the case, which gives a court a reason to ask whether withdrawal is the only remedy.
The court did not treat a showing of burden as the end of the matter. It explained the theory behind the provision that lets a tribunal override a lawyer’s grounds: even if withdrawal is otherwise appropriate, other considerations must sometimes take precedence, such as fairness to litigants and preservation of the court’s resources and efficiency.18 The opinion also cites an earlier New Jersey decision, Jacobs, for the point that withdrawal “depends upon such considerations as proximity of the trial and possibility for the client to obtain other representation.”19 The Model Rule builds in the same override. Its lead-in subjects every ground to paragraph (c),20 which requires a lawyer to continue the representation “when ordered to do so by a tribunal . . . notwithstanding good cause for terminating the representation.”21 A later section takes up the tribunal’s power in full.
The New Jersey text itself appears in an opinion that reproduces the rule and recounts the expert affidavits filed in support of Budd Larner’s motion. It lists the burden-or-difficulty ground as (5), good cause as (6), and the tribunal override as (c).22 In that opinion, an expert concluded that Budd Larner had “met the criteria of ‘good cause’ found in RPC 1.16(b)(6)” and also had a basis for withdrawal under (b)(5), so the firm’s expert pointed to both grounds.23 A case that cites (5) for the burden ground is thus discussing the same ground this section teaches, which the Model Rule numbers (b)(6).
A breakdown on the client’s side appears in less detail in 24-7 Group of Companies, Inc. v. Roberts. The corporation’s lawyer, Stone, told the court that the representation had deteriorated and that he could no longer represent the corporation effectively and adequately.24 He also reported that, pursuant to the engagement agreement, he had notified the corporation in writing that he had “no alternative but to withdraw.”25 At a show cause hearing on September 5, 2014, the corporation’s representative, Kraft, demanded that the court vacate its order allowing withdrawal but offered no substantive response to Stone’s account of the deterioration.26 The court then recited Nevada’s version of the repugnance-or-fundamental-disagreement ground, Rule 1.16(b)(4), which suggests that a deteriorating representation can be analyzed under more than one ground.27 The excerpt shows what the lawyer put before the court and that the client did not answer it. It does not describe the conduct behind the deterioration, so it says little about how much obstruction suffices.
The second prong stays within its text. A client who telephones daily and questions strategy is a trial for the lawyer, yet one who still supplies documents, pays invoices, and follows advice has made the work demanding without making it unreasonably difficult. A matter that is hard because the law is unsettled or because opposing counsel is aggressive also falls outside the prong, since the client did not render that difficulty. Whatever relief the lawyer has in that case comes from the financial prong or another ground. Students should also keep this ground apart from nonpayment under (b)(5). Unpaid fees are a client’s failure to perform an obligation, and that ground conditions withdrawal on a reasonable warning. Paragraph (b)(6) asks what the representation will cost or has become, and its text contains no warning requirement.28 As with every ground, leaving on this one leaves intact the lawyer’s duty under paragraph (d) to protect the client on exit.29
Other Good Cause
Rule 1.16(b)(7), the last of the seven grounds, allows a lawyer to withdraw when “other good cause for withdrawal exists.”31 The word other ties the ground to the six before it, because it reaches reasons none of them describes. Like every ground in paragraph (b), it sits under a lead-in that yields to a tribunal’s order to continue.32 Its text contains no condition about material adverse effect on the client, a condition that appears only in the harm-free ground of (b)(1).33
A catch-all exists because no list can anticipate every way a representation fails. The first six grounds each describe a recognizable situation, such as a harmless exit, a client’s crime or fraud, a repugnant objective, unmet obligations after warning, or an unreasonable burden. A representation can become untenable in a way that matches none of them. The most common example is a collapse of trust between lawyer and client, where no one has committed a crime, no objective is repugnant, no fee is overdue, and no one can point to a measurable financial burden. The catch-all lets the rule reach that situation without forcing its drafters to name it in advance. The adjective good does the opposite work and keeps the exception from swallowing the paragraph. If any reason sufficed, the harm condition in (b)(1) would do nothing, since every lawyer who wanted to leave a client whom departure would hurt could invoke (b)(7) instead. The word demands a real reason connected to the representation or the relationship, and a lawyer’s preference does not supply one.
The breakdown of trust and confidence is the paradigm good cause, and Minkina v. Frankl shows it at work. The client sued the firm that had represented her, and one of her claims was that the firm breached its fiduciary duty when it discontinued the representation.34 The Massachusetts Appeals Court quoted its state’s version of the rule, which allows withdrawal when that can be done without material adverse effect on the client, when the client has rendered the representation unreasonably difficult, or when other good cause exists.35 It then stated that, as it had previously held, a breakdown in the attorney-client relationship serves as good cause for withdrawal. The court agreed with the Office of Bar Counsel that the breakdown in this relationship justified the withdrawal, and it found no error in the grant of summary judgment against the fiduciary-duty claim.36
The reason a collapse of trust counts as cause is practical. A representation runs on candor in both directions. The client must supply facts and accept advice, and the lawyer must give honest judgment and loyal effort. A client who believes the lawyer is negligent or disloyal will discount the advice, hold back information, and read each later step as more proof, so the work degrades whether or not the accusations are correct. A lawyer accused of gross negligence also acquires a personal stake in answering the charge, which competes with the single-minded loyalty the client is owed. Nothing in the ground’s text requires the lawyer to prove the client’s accusations false before leaving. What counts is that the relationship has failed, and a real breakdown rests on facts someone can point to.
In Minkina the cause lay in the relationship itself. In the trial-eve scene the cause lies in the lawyer’s other opportunities, which say nothing about whether this client and this lawyer can still work together. Ordinary friction falls on the same side of the line. A client who questions an invoice or grumbles about the pace of a case has frustrated the lawyer without losing faith in the lawyer’s honesty or competence, so the relationship remains workable and the catch-all does not apply.
The catch-all also does not excuse a lawyer from the elements of the specific grounds. A lawyer owed unpaid fees who never warned the client that withdrawal would follow has not satisfied (b)(5), and the better reading of good cause does not let the lawyer avoid that warning by relabeling the fee default, since the warning requirement would then serve no purpose. Good cause covers facts the specific grounds leave unaddressed, and the limits that attach to every ground attach to it too. A tribunal may order the lawyer to continue despite good cause,37 and a lawyer who leaves must still protect the client on exit, matters the next two sections develop.