Legal Ethics: New ABA opinion seeks to clarify lawyers’ duties when they withdraw from cases

By Jim Doppke

In my time as a disciplinary prosecutor, I reviewed grievances from clients stemming from every phase of the attorney-client relationship – and from events after the end of the relationship, too. Clients would say that they fired their lawyer for being uncommunicative, only to have that same lawyer neglect or even refuse to turn over their file materials after being fired. The lawyers, for their part, often responded by plausibly denying that they had been uncommunicative in the first place, and by demonstrating that they had turned over file materials – maybe not everything the client anticipated, but definitely enough for the client and their new counsel to be able to proceed.

But sometimes the client’s grievance didn’t involve the file materials. Sometimes clients claimed that the lawyer had violated professional norms by not answering their questions, or those of successor counsel, after withdrawing. The client’s complex litigation was stalling; their opponent was retrying a tactic that the first lawyer had beaten back. Shouldn’t the former lawyer help the client by explaining what happened before? Or can the former lawyer decline to answer? Where can the line be drawn?

ABA Formal Opinion 520

The ABA seeks to answer these kinds of questions through its Formal Opinion 520, issued Jan. 21, 2026. The opinion began by referring to Model Rule 1.16(d) and its mandate that lawyers “take steps to the extent reasonably practicable to protect a client’s interests” upon termination or withdrawal. The Rule enumerates certain non-exclusive examples of ways to accomplish that goal: “Giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred.”

Analyzing several sources of authority, the Opinion first concludes that protection of a client’s interests sometimes requires a terminated lawyer “to convey information that was not recorded and maintained in the client’s file.” We can grant that there may have been times that the lawyer learned something and declined (or “failed,” as the Opinion pejoratively puts it) to put it in writing, and it stands to reason that it might be professionally appropriate for the lawyer to pass that along at or after termination if necessary to protect a client’s interests. The Opinion expands on the concept, suggesting that the information in question would include “factual information that could have been, and perhaps should have been, memorialized, regarding, for example, an interview with a client or material witness or what happened off the record in court or in settlement negotiations with opposing counsel.”

I cannot say that I would expect a lawyer to memorialize any and all observations or insights gleaned from such situations, even if it may be good practice to memorialize some of them. But that aside, it is not necessarily difficult to imagine information derived from those situations that the client or their new lawyer would need to know in order to protect the client. It is not a stretch to understand our professional duties as encompassing the disclosure of that information.

Further scope of duties after withdrawal

Other examples cited by the Opinion as potentially subject to disclosure, though, seem less clear.

The Opinion posits that Rule 1.16(d) would require terminated lawyers to provide information regarding “strategic or tactical reasons for actions taken in the course of representing the client,” “impression of a witness’s credibility,” and “the lawyer’s un-memorialized communications with the client.” Each of those categories involves information that incorporates the lawyers’ observations of facts, but also the lawyer’s own subjective determinations and judgment. As such, discussing them following the end (or perhaps rupture) of the attorney-client agreement could be more fraught than the Opinion seems to envision.

It seems highly likely, for example, that the lawyer already explained their “strategic or tactical reasons for actions taken” to the client as they were occurring, even if the client disagreed or felt that the explanation was inadequate. Perhaps the client’s disagreement with them is part of what led to the termination of the representation. Does Rule 1.16(d) require the former lawyer, upon pain of discipline, to rehash that with the client or new counsel, or to answer a battery of potentially hostile questions aimed less at gaining information and more at calling the former lawyer’s judgment into question?

Similarly, if the client proceeds pro se, and the credibility of the witness is truly crucial to the client’s interests, perhaps it is fair to require the former lawyer to explain that to the client even after termination. But what if the client terminated the lawyer’s representation because they no longer trusted the lawyer’s judgment in such matters? What if the client did secure new representation? Should the former lawyer be required to be on call to provide (likely uncompensated) insight into what was, after all, her own subjective interpretation of the client’s case?

As for “the lawyer’s un-memorialized communications with the client,” lawyers and clients are very often at odds, following the end of the relationship, about whether the lawyer was sufficiently communicative. Clients will often claim that virtually no communication occurred; lawyers will say the communication was frequent and fulsome. How can we understand the scope and duration of the former lawyer’s duty to state or re-state what the communications were after termination?

Each of the foregoing situations seems to involve more ambiguity than Formal Opinion 520 allows. Even as we remain mindful of our duty to avoid foreseeable prejudice to the former client, it seems reasonable to suggest that Rule 1.16(d) should not be construed to provide former clients with an opportunity to force their former counsel to revisit settled issues or to defend their own conduct to their successor. Regulators are already awash in grievances relating to lawyers’ communications; an expansion of Rule 1.16(d) to make manifold kinds of post-termination communications potential bases for discipline would complicate matters substantially, for little benefit to the profession. The Opinion cites two Wisconsin disciplinary cases in which the respondent-attorneys were disciplined for conduct including failing to communicate following the termination of a representation, but it is worth noting that in neither case was that the sole basis for discipline. There were other violations, other harms, that the discipline addressed.

Parting thoughts

I do not think that Formal Opinion 520 necessarily compels an overly expansive result, or that it is meant to. The Opinion rightly steps back from a declaration that a terminated lawyer must cooperate with a former client for any reason and in all ways. It helpfully, and correctly, points out that lawyers have no obligation to generate new work product post-termination; to locate information that is otherwise readily available; or to provide advice or insight as to a new matter (e.g., a lawsuit arising out of a transaction that was the subject of the former representation).

Those limitations are salutary, and they allow lawyers to focus on what matters: Taking reasonably practicable steps, if not every conceivable step, to protect a client’s interest after termination of the attorney-client relationship.

 

 

Jim Doppke is a partner at Robinson, Stewart, Montgomery & Doppke in Chicago, Ill. His practice involves representing attorneys in legal ethics and professional responsibility proceedings. He can be reached at [email protected].