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Besides payment, what can be addressed in client engagement agreements? New ABA opinion offers direction

By David L. Hudson Jr.

May 20, 2026, 10:04 am CDT

A lawyer can identify when they may withdraw from representing clients in engagement agreements, including topics that are not explicitly identified in the withdrawal rule, such as clients not consulting with counsel before speaking to the press, according to a new ABA ethics opinion.

However, the lawyer must make sure that the language in such agreements does not overstep ethical boundaries, according to Formal Opinion 523, released Wednesday by the ABA’s Standing Committee on Ethics and Professional Responsibility.

The rule in question, Model Rule 1.16(b)(5) of the ABA Model Rules of Professional Conduct, provides that a lawyer may withdraw from representing a client if the client “fails substantially to fulfill” obligations to the lawyer and if the lawyer has given the client “reasonable warning” about possible withdrawal.

Most often, a lawyer seeks to withdraw when a client consistently fails to meet financial obligations to the lawyer. But sometimes a lawyer will seek withdrawal when the client significantly fails to cooperate with the representation. Neither must be spelled out explicitly in the engagement agreement as reasons for the lawyer’s withdrawal, and the lawyer can seek to withdraw if the requisite reasonable warning has been delivered to the client, according to the opinion.

The engagement agreement can spell out other client obligations that if the client substantially fails to comply with, the lawyer can seek withdrawal. The opinion explains that a lawyer could require the client to consult with the lawyer before publicly commenting on the case. The idea is that the client’s unliteral communication without lawyer approval could frustrate or undermine the attorney-client privilege or work product protection, according to the opinion.

However, a lawyer cannot seek withdrawal under Rule 1.16(b)(5) if the client fails to comply with an obligation not related to the lawyer’s services. Furthermore, a lawyer cannot withdraw under the rule “based on a client’s insubstantial failure to comply with an obligation set forth in the engagement agreement.” For example, client tardiness “probably would not alone justify” the lawyer terminating the relationship.

The lawyer also cannot use language in an engagement letter to secure a withdrawal that is contrary to the rules. For example, a lawyer cannot withdrawal from representing a client simply because a client rejects a settlement offer. The power to settle or not settle ultimately resides with the client under Rule 1.2, which addresses the client-attorney relationship.

Additionally, the agreement cannot imply that the lawyer withdraws unilaterally without court approval. The tribunal must approve of the withdrawal under Rule 1.16(c).

A May 20 ABA press release is here.

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