When Can a Lawyer Walk Away? Understanding 'Material Adverse Effect' Under Rule 1.16
By Laura Popps
A common issue in grievance matters is whether a lawyer’s decision to withdraw from representation was ethically justified. The core question is whether the lawyer had a valid ground under TDRPC 1.16(b)(2) - (7), or whether they could withdraw under 1.16(b)(1) without causing “material adverse effect” to the client’s interests — where no specific reason is required.[i] The problem is, for years, that phrase was left largely undefined. Fortunately, recently released ABA Formal Opinion 516 finally sheds light on what “material adverse effect” actually means in this context.[ii]
Opinion 516 explains that “material adverse effect” does not turn on the client’s disapproval or their perception that withdrawing would be disloyal, nor is it triggered by minor inconveniences or delay. Rather, it refers to significant harm to the client’s interests in the matter in which the lawyer represents the client, e.g.:
[I]f the lawyer’s withdrawal 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.[iii]
Examples of situations in which withdrawal will likely have a material adverse effect include:
● Transactional matters where delays in securing new counsel could jeopardize the deal or diminish its value;
● When no substitute counsel is available who can complete the representation within the necessary timeframe;
● When timing is objectively important, and withdrawal will cause a significant delay;
● When the original lawyer is uniquely qualified to handle the matter and cannot be adequately replaced;
● When the client will incur substantial additional costs due to successor counsel having to replicate work already performed.[iv]
Popps Law & Consulting provides guidance on a wide variety of matters involving legal ethics and attorney grievance defense. Schedule an initial consultation here.
In some scenarios, counsel may be able to minimize the impact of these factors enough to avoid the level of harm the rules are intended to prevent. For example, one of the more common scenarios involves the risk that new counsel will need to spend time getting up to speed, resulting in added costs to the client. In these cases, the withdrawing lawyer can help mitigate the impact by helping find a new lawyer quickly, refunding a portion of the fees, and actively assisting successor counsel in the transition.
Situations where withdrawal is unlikely to cause a material adverse effect include matters that are still in the early stages with minimal work completed, cases where co-counsel is available to assume responsibility, or where there is no impending matter or deadlines at the time of withdrawal.[v]
There are obviously numerous situations that fall between the extremes of clear material adverse effect and no adverse effect at all. The takeaway from Opinion 516, in my opinion, is that a lawyer must evaluate whether withdrawal would leave the client in a significantly worse position — procedurally, financially, or substantively — than if the lawyer remained in the case. Some things to consider are how close the matter is to trial or a critical deadline, how difficult it will be for the client to find adequate replacement counsel, the likelihood of significant additional costs to the client, and the risk that the client’s objectives will be materially undermined or thwarted.
If the lawyer reasonably concludes that these harms can be avoided or minimized, withdrawal may be proper under Rule 1.16(b)(1), and client consent is not required. If this is not the case, then a lawyer would need to be able to justify withdrawal under Rule 1.16(b) (2) - (7). Regardless, the lawyer should document the basis for withdrawal in the file to demonstrate compliance with ethical obligations if later questioned.
[i] Texas Disciplinary R. Prof’l Conduct 1.16(b)(1) – (7).
[ii] While ABA Formal Opinions are not binding in interpreting the Texas Disciplinary Rules of Professional Conduct, they are often treated as persuasive authority and provide helpful analysis—particularly when the Texas rule closely parallels the corresponding ABA Model Rule, as in this case.
[iii] ABA Formal Op. 516 (2025).
[iv] Id.
[v] Id.
Laura Popps defends Texas attorneys before the State Bar, advises on legal ethics, and handles criminal appeals. A former prosecutor, Laura has been Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1999. She then served for ten years as Regional Counsel at the State Bar of Texas’ Office of Chief Disciplinary Counsel before founding her own firm.
Laura can be reached at laura@poppslaw.com or (512) 865-5185.