Julius Caeser is credited with coining the phrase, “Experience is the best teacher.” In law, experience teaches us many things. In the legal ethics arena, experience teaches us to see red flags about clients, cases, and witnesses. When you see the red flags, don’t ignore them. Instead, address them, and if you cannot resolve issues to your satisfaction, terminate representation.
What are the red flags I see? There are many. They include but are not limited to financial challenges, unresponsive clients, clients who withhold documents, or clients who fight you at every turn about the small issues in a case.
Today, however, is not about those red flags. It is about what you do when you cannot resolve concerns about a case or client to your satisfaction.
My advice: run away. And don’t hesitate. But when you run away, be sure to do it the right way.
Maryland Rule 19-301.16 governs termination of the attorney-client relationship. Under certain circumstances, an attorney must withdraw. These situations include situations where the representation will cause the lawyer to violate the Rules of Professional Conduct, the client is attempting to use the lawyer to commit a crime or fraud, or if the attorney cannot represent the client because of some type of impairment. Other times, the withdrawal is permissive in nature. Enumerated examples in Rule 19-301.16(b) include when the client insists on a course of action the lawyer believes is fraudulent or criminal, the client insists upon a course of action the attorney thinks is repugnant or has a fundamental disagreement with, there is an unreasonable financial burden, or the client has made representation unreasonably difficult.
At all times, however, the withdrawing lawyer needs to consider whether the withdrawal can be accomplished without a material adverse effect on the client. What is considered a material adverse effect most certainly depends on the facts and circumstances of a particular representation.
To this end, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently published Formal Opinion 516 entitled Terminating a Client Representation under MRPC 1.16(b)(1): What “Material Adverse Effects” Prevent Permissive Withdrawal? The Committee’s goal in the opinion was to provide advice to lawyers who want to terminate representation under Rule 1.16(b)(1) without a specific event or reason.
Rule 1.16(b)(1) is based on the thought process that a lawyer, except in very limited circumstances, should be compelled to represent a client. It allows lawyers to withdraw so long as the withdrawal doesn’t materially adversely affect the client. According to the Committee, a material adverse effect must relate to the client’s interests in the matter in which the lawyer represents the client. The effect should be one that significantly impacts the client, whether by cost or by time or impairs the client’s objectives despite the lawyer’s best efforts to eliminate negative consequences.
Determining whether there is a material adverse effect requires evaluating several factors. Among other items, counsel should consider the procedural status of the case or transaction, the availability of substitute counsel with adequate experience, time, and resources, or whether there is an impeding deadline, trial, or statute of limitations. I urge this type of consideration.
While Opinion 516 has some worthwhile advice, the Dissent raises valid concerns. The Opinion can be read to permit lawyers to drop one client and sue another for any reason. I share the concern that Opinion 516 gives lawyers a roadmap to terminate representation with one client only to sue a former one. I see red flags any time a lawyer considers being adverse to a former client, even when permitted under Rule 19-301.9 (Conflicts of Interest). This “hot potato” scenario, to me, raises significant concerns about conflicts of interest. I also agree with the Dissent’s position that the bar is better served by educating lawyers to diligently and timely close files to limit ongoing ethical responsibilities to clients, rather than giving road maps to drop active clients.
I strongly support lawyers who choose to withdraw or terminate representation properly. I want lawyers to look for red flags like financial challenges, unresponsive clients, clients who withhold documents, or clients who fight you at every turn. These issues rarely get better. If you find yourself in these circumstances, don’t ignore the red flags — withdraw. Just do it for the right reasons and do it the right way.
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His Legal Ethics column appears monthly in The Daily Record. He can be reached at csb@gdldlaw.com.
This article originally appeared in The Daily Record on July 3, 2025.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.
