Current Month (August 2026)
Ethics and Professional Responsibility
Endgame Preparation: Reengaging with Your Engagement Letter
The great chess pedagogue Dr. Siegbert Tarrasch is famously quoted as saying, “Before the endgame, the Gods have placed the middlegame.” That is true of the opening as well.
Many lawyers sensibly regard voluntary withdrawal from an engagement, which is governed by Model Rule 1.16(b), as belonging to the endgame of the lawyer-client relationship, while the engagement letter is part of the opening. Permissive withdrawal is typically triggered when something goes awry in that relationship so long as the withdrawal can be accomplished “without material adverse effect” on the client’s interests. Rule 1.16(b)(1).[1] But there are other bases under Rule 1.16(b),[2] and, just as a good chess player has an eye on possible endgame positions when playing the opening, so too should a lawyer or a law firm in its engagement letter, particularly when it comes to withdrawal under Rule 1.16(b)(5). That is the lesson to be gleaned from the recent ABA Formal Opinion 523.
Rule 1.16(b)(5)[3] allows voluntary withdrawal where “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 basis for withdrawal is most commonly invoked when a client fails to pay legal fees,[4] a requirement typically covered in engagement letters. There are, however, other permissible reasons for withdrawal under this rule, and Formal Op. 523 addresses them. Your engagement letter should too.
“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 opinion notes. Building upon this, the opinion focuses on specific provisions detailing client obligations and discussing limitations on such provisions. In general, Formal Op. 523 contemplates the following client obligations—all of which affect the lawyer’s ability to complete the requirements of the engagement competently—as implicit in the engagement, hence legitimate:
- producing requisite documents (especially discoverable documents) in the client’s custody and control promptly;
- providing truthful information to the lawyers;
- cooperating with the lawyers;
- being communicative and responding to reasonable inquiries and requests from counsel; and
- maintaining up-to-date contact information.
In addition, Formal Op. 523 allows for the addition of client obligations that are not implicit in the representation. These include:
- refraining from recording (audio or video) conversations with the lawyer(s);
- checking with counsel before posting any information about the matter publicly (e.g., making press statements, posting on social media), in order to avoid, inter alia, inadvertent waivers of privilege or work product protection; and
- while the opinion does not address this, it would seem that a related, arguably implicit client obligation in the current, almost frenzied race to develop and adopt artificial intelligence would be an undertaking not to post privileged or otherwise confidential documents on an AI platform.
Formal Op. 523 clarifies that lawyers must not include in an engagement agreement matters interdicted by the Model Rules or other law or public policy or terms that run contrary to other Model Rules provisions. The list of “thou shalt nots” includes:
- using the agreement to expand Rule 1.16’s bases for permissive withdrawal;
- getting a client to waive the right to file a grievance;
- blanket consent to withdraw for any reason or no reason;
- obligating the client to accept a settlement recommended by the lawyer, or to reject a settlement that the lawyer disapproves;[5]
- seeking to build in withdrawal excuses for trivial or insubstantial acts or omissions by the client; and
- endeavoring to skip the immanent requirements of the rules, such as obtaining a court’s permission to withdraw when required, eschewing the mandatory requirement to warn the client of potential withdrawal if the client’s noncompliance continues, and protecting the client’s interests during the withdrawal process.
The major takeaway, under the opinion’s interpretation of Rule 1.16(b)(5), is that engagement letters can ethically be even more useful as endgame preparation than they currently are, provided the foregoing limitations are scrupulously observed.
Model Rule 1.16(b)(1) was discussed last year in Formal Op. 516, which explained that withdrawal would have a “‘material adverse effect on the interests of the client’ if it would result in significant harm to the forward progress of the client’s matter, significant increase in the cost of the matter, or significant harm to the client’s ability to achieve the legal objectives that the lawyer previously agreed to pursue in the representation,” and went on to suggest methods of remediating those adverse effects. ↑
In general, Model Rule 1.16(b) delineates seven situations in which a lawyer is permitted to withdraw voluntarily. Some of these revolve around client misconduct; others are based on the lawyer’s personal or financial interests. ↑
Formal Op. 523 confines itself to Model Rule 1.16(b)(5) and provisions of an engagement letter regarding client obligations. The opinion neither addresses nor seeks to limit withdrawal pursuant to any of the other provisions of Rule 1.16(a) or (b). ↑
See, e.g., Fidelity Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537 (7th Cir. 2002) (holding that trial court abused its discretion in denying law firm’s motion to withdraw when client had stopped paying bills). ↑
This sort of provision is incompatible with Model Rule 1.2(a), which allocates settlement authority to the client. ↑
