Lawyers Can Drop Uncooperative Clients, Within Limits, ABA Says

Lawyers can stop providing services or seek permission to do so if a client doesn’t fulfill basic obligations in the attorney-client relationship, the American Bar Association said in a new ethics opinion.

This option, under Rule 1.16(b)(5), is most commonly invoked when a client repeatedly fails to pay for legal services, the ABA noted in its Wednesday opinion. However, the rule can also be applied to clients who refuse to cooperate with their attorney, provide or update their contact information, or comply with other terms of an engagement agreement, the ABA said.

This is true even in circumstances where withdrawing representation would inflict a material adverse effect on the client, the ABA said, with the caveat that attorneys must give their client “reasonable warning that the lawyer will withdraw unless the obligation is fulfilled” before they can abandon their client.

“In addition to serving as a risk management tool for the lawyer and law firm, engagement agreements should provide the client with a meaningful understanding of the material terms of the relationship,” the association said. “This Opinion focuses specifically on provisions concerning the client’s obligations.”

The opinion lays out several limitations an attorney must consider when drafting engagement agreements.

For example, engagement agreements can stipulate provisions that the Model Rules of Professional Conduct don’t require, such as more implicit client obligations like producing necessary documents and providing truthful information.

An agreement could also have terms that are “not otherwise implicit” as long as they’re “within ethical limits,” the ABA said, including provisions that prohibit a client from recording conversations or disclosing the attorney’s identity on social media over the course of representation.

Client agreements can’t be used to require clients to comply with terms prohibited under the Model Rules or other public policy, such as forcing a client to “promise not to later pursue a disciplinary complaint or bar grievance against the lawyer or law firm.”.

The opinion emphasizes that attorneys must enforce engagement agreements that are accurate or not misleading to the client; the ABA bars agreements that mischaracterize the client’s prospective rights and obligations, in addition to the circumstances in which attorneys can withdraw representation.

Agreements also can’t include “a blanket stipulation irrevocably consenting to the lawyer’s future withdrawal” in circumstances when an attorney wishes to withdraw for a reason not specified and agreed to by the client, the opinion said.

Other unreasonable circumstances to withdraw representation include if a client rejects a settlement offer, owes the attorney a debt unrelated to the litigation, or fails to meet a “trivial obligation” like appearing late to a scheduled appointment while having a reasonable excuse, the opinion said.