FEATURE ARTICLE: ABA Formal Opinion 516
Author: Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Legal Editor: Carrie E. Parker
This article is featured in Volume 7, Number 5 of the Legal Ethics and Malpractice Reporter, published May 29, 2026.
On May 20, 2026, the American Bar Association Committee on Ethics and Professional Responsibility issued Formal Opinion 523. It discusses the complexities of Model Rule 1.16(b)(5) (KRPC 1.6(b)(3))—the provision of the Rules that permits lawyers to withdraw from a representation 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.”
As the Opinion notes, the provision is invoked most frequently when a client fails to meet financial obligations, but the rule but is not limited to instances when a client fails to pay as promised:
Rule 1.16(b)(5) is most often invoked when the client fails to fulfill an obligation regarding legal fees or expenses. However, clients may assume other obligations that may be made explicit in the engagement agreement, such as the duty to cooperate with the lawyer regarding the representation nor to provide and update the client’s contact information.
The first significant point of Opinion 523 is this paragraph’s focus on the lawyer-client engagement agreement. The engagement agreement is the memorialization of the “deal” between the layer and client. As such, its provisions are critical. Even so, the Rules do not specify what its contents should be. While the lawyer and client cannot agree to obligations that violate the Rules, they can agree to a wide range of provisions and self-impose obligations. Opinion 523 explains:
The lawyer’s engagement agreement may specify obligations of the client that are otherwise implicit in the representation, such as the obligation to cooperate with the representation, including in a litigation context the duty to produce discoverable documents within the client’s custody and control. Other such implicit obligations include the client’s obligation to communicate with the lawyer, to provide information truthfully, and to provide or to execute documents that are necessary for the lawyer to conduct the representation as the law requires.
Within ethical limits, the engagement agreement may also set forth obligations of the client that are not otherwise implicit. For example, a lawyer may include a provision in which the client agrees not to make an audio or a video recording of communications between the lawyer and the client, or not to discuss the lawyer or the representation on social media during the course of the representation.
While specifically listing mutual obligations in the engagement agreement may make subsequent withdrawal easier, an explicit mention in the agreement is not necessary. As the opinion notes:
a lawyer may withdraw based on the client’s substantial failure to cooperate with the representation, regardless of whether that obligation is made explicit in the engagement agreement or left implicit, as long as the lawyer has given the requisite “reasonable warning.”
Still, memorializing issues that seem to form repeated bases for withdrawal is certainly prudent.
Opinion 523 notes that there are provisions that might seem reasonable to a lawyer, but that will not justify withdrawal even if the client agrees. For instance:
A lawyer may not withdraw based on Rule 1.16(b)(5), however, if the client fails to comply with an obligation that is not one “regarding the lawyer’s services.” For example, a client’s obligation to pay a prior debt to the lawyer that is unrelated to the lawyer’s services is not an obligation “regarding the representation.” Therefore, the client’s failure to repay the prior debt would not justify the lawyer’s withdrawal under Rule 1.16(b)(5).
Further, a lawyer may not withdraw under Rule 1.16(b)(5) based on a client’s noncompliance with a trivial obligation or based on a client’s insubstantial failure to comply with an obligation set forth in the engagement agreement. For example, if the engagement agreement obligates the client to appear at scheduled office appointments on time, tardiness probably would not alone justify terminating the representation, if the client has reasonable excuses for appearing late.
These exceptions to a lawyer’s general freedom to include anything in the engagement agreement (other than provisions that violate the Rules or other law) make sense. The first is simply interpretive of the text of Rule 1.16, which specifically requires that the reason for withdrawal be “regarding the lawyer’s services” to the client (i.e., the reason for withdrawal must relate to the representation). The second rule also is interpretive. The text of the Rule requires that the client’s failure be “substantial.” A trivial failure (e.g., being a few hours late with a payment) will not generally be a justification for withdrawal.
The Opinion concludes:
Rule 1.16(b)(5) of the ABA Model Rules of Professional Conduct permits a lawyer to withdraw from a representation, or to seek the tribunal’s permission to do so, 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.” This provision is ordinarily invoked when a client fails to fulfill an obligation regarding payment of legal fees and expenses. The engagement agreement may memorialize additional obligations of the client, both obligations that are otherwise implicit such as the client’s truthful cooperation with the representation, and further obligations insofar as they are not forbidden by the Rules, other law (including court rules), or public policy. A client’s persistent failure to fulfill obligations regarding the lawyer’s services, including obligations unrelated to payment of fees and expenses, may constitute a basis for withdrawal if the procedural requirements of Rule 1.16(b)(5) are satisfied.
Further, the lawyer’s engagement agreement may put the client on notice of permissible grounds for withdrawal under Rule 1.16(a) and (b), including the clients’ failure to fulfill obligations regarding the lawyer’s services. However, the engagement agreement may not expand on the grounds for withdrawal set forth in Rule 1.16 or mislead the client regarding the legitimate grounds.
The Opinion focuses on voluntary withdrawal under Rule 1.16, but it offers a lesson that is much broader in scope. It reminds lawyers of the importance of engagement letters. For younger lawyers and others just entering practice, the importance of well drafted engagement letters may not be appreciated. Opinion 523 is an important corrective to this.
READ THE FULL ISSUE OF LEMR, Vol. 7, No. 5
About Joseph, Hollander & Craft LLC
Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.
We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
When your business, freedom, property, or career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless — Ready for Anything, come what may. At JHC, we pride ourselves on offering outstanding legal counsel and representation with the personal attention and professionalism our clients deserve. Learn more about our attorneys and their areas of practice, and locate a JHC office near you.
