Model Rule 1.16: Declining or Terminating Representation
Rule 1.16 governs when a lawyer must or may refuse to take on, or must withdraw from, a representation, and what the lawyer must do when ending the relationship. It splits withdrawal into mandatory situations (where continuing would violate the rules or other law, the lawyer's physical or mental condition materially impairs the representation, or the client discharges the lawyer) and permissive situations (a broader list of discretionary reasons). It also requires that, whenever representation ends, the lawyer take steps to protect the client's interests, including returning papers/property and any unearned fees.
When it applies
This comes up whenever a client stops paying, wants the lawyer to do something illegal or unethical, fires the lawyer, or the lawyer discovers a conflict or loses capacity to continue; it is heavily tested on the MPRE because it requires distinguishing "shall withdraw" from "may withdraw" scenarios and knowing the post-termination duties.
What the rule requires
- A lawyer must decline or withdraw if representation will result in violation of the rules or other law, if the lawyer's physical or mental condition materially impairs the representation, or if the lawyer is discharged by the client.
- A lawyer may withdraw for a list of permissive reasons, including when withdrawal can be done without material adverse effect on the client, the client persisting in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, the client having used the lawyer's services to commit a crime or fraud, the client insisting on action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement, the client substantially failing to fulfill an obligation to the lawyer (such as paying fees) after reasonable warning that the lawyer will withdraw, unreasonable financial burden on the lawyer or representation made unreasonably difficult by the client, or other good cause.
- Even where grounds for withdrawal exist, a lawyer must continue representation if ordered to do so by a tribunal, notwithstanding the existence of good cause.
- Upon termination, a lawyer must take reasonably practicable steps to protect the client's interests, such as giving reasonable notice, allowing time for substitute counsel, and surrendering papers and property to which the client is entitled.
- A lawyer must refund any advance fee payment that has not been earned or incurred at the time of termination.
- A lawyer may retain papers to the extent permitted by other law, but this is subject to protecting the client's interests.
Exceptions
- A tribunal's order to continue representation overrides an otherwise valid ground for withdrawal.
- Withdrawal for nonpayment or client misconduct is permissive, not mandatory, giving the lawyer discretion rather than an obligation to quit.
- Some jurisdictions' other law on file retention (a retaining lien) can limit the duty to turn over papers, though client protection still governs.
How the MPRE tests Model Rule 1.16
- Students confuse mandatory ('shall') withdrawal triggers, like the rules-violation or discharge scenarios, with the much longer list of merely permissive ('may') grounds like nonpayment or repugnant objectives.
- Questions test whether a lawyer can withdraw immediately when litigation is pending; if the tribunal's rules require notice to or permission of the tribunal, the lawyer must comply even when withdrawal is otherwise mandatory, and if the tribunal orders continued representation, the lawyer must continue.
- MPRE questions probe whether unearned fees must be returned even if the fee agreement called it 'nonrefundable,' testing the refund-of-unearned-fees requirement.
- Test-takers often forget that being discharged by the client is itself a mandatory withdrawal trigger, even absent misconduct.
Example
A client in ongoing litigation tells her lawyer she plans to commit perjury at trial, and when the lawyer refuses to assist, the client fires the lawyer outright. Under 1.16, the discharge by the client is itself a mandatory basis for withdrawal, but because the case is in litigation, the lawyer must comply with any tribunal rule requiring notice or permission to withdraw (and must continue if the tribunal so orders) and, upon leaving, must return the client's file and any unearned fees.
Related rules
On the MPRE
A plain-English summary of the ABA Model Rule, not the rule text. Your jurisdiction's version of the rule controls in practice.