Struggles in the Legal World. ABA Amends Model Rule Regarding Terminating Representation

• Pages: 9-9
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: Alenah Luthens
• Subject Matter: Derecho Público y Administrativo

Published i n Litigation News Volu me 50, Number 4 , Summer 2025. © 2 025 by the Americ an Bar Associa tion. Reprodu ced with permiss ion. All rights r eserved. Thi s information or any p ortion

thereof may not b e copied or dis seminated in a ny form or by any mea ns or stored in a n electroni c database or r etrieval syst em without the ex press writt en consent of th e American B ar Associa tion.

he American Bar Association’s

Standing Committee on Ethics

and Professional Responsibility

and Standing Committee on

Professional Regulation proposed

amendments to ABA Model Rule of

Professional Conduct 1.16 and its com-

ments regarding a lawyer declining or

terminating representation. The ABA

House of Delegates subsequently

passed Revised Resolution 100 adopt-

ing the proposed amendments.

The resolution explains that lawyers

must “inquire into and assess the facts

and circumstances of each representa-

tion to determine whether” they can

accept or continue representation. The

resolution’s clarifying language seeks

to stem corruption and help lawyers

avoid unwitting involvement in unlawful

conduct.

The impetus for the resolution was

lawyers’ unknowing involvement in, or

failure to recognize warning signs relating

to, “a client’s use of a lawyer’s services to

facilitate possible money laundering and

terrorist f‌inancing activities,” the Ethics

Committee and Regulation Committee

report. For example, consider a scenario

where a client requests “a lawyer to hold

money in a client trust account…to fund

another transaction.” Thereafter, the cli-

ent asks the lawyer to return the money

“because the ‘transaction’ has fallen

apart.” In doing so, the lawyer laundered

money through the client trust account.

Unquestionably, it is unethical and

illegal for a lawyer to knowingly facilitate

a client’s illegal or fraudulent conduct.

The resolution clarif‌ies that it is likewise

unethical for a lawyer to ignore indica-

tors that a client likely intends to engage

in such conduct—like a client’s dubious

request for a lawyer to temporarily hold

money in a client trust account pending

an unspecif‌ied “transaction.”

The resolution revises Rule 1.16 and

its comments to clarify lawyers’ ethi-

cal obligation to identify and respond to

“red f‌lags” regarding a client’s proposed

actions. Specif‌ically, the resolution

ABA Amends Model Rule Regarding

Terminating Representation

clarif‌ies that “[a] lawyer shall inquire into

and assess the facts and circumstances

of each representation to determine

whether the lawyer may accept or con-

tinue the representation.”

The resolution also requires lawyers

to decline or terminate representation

if a client insists on using the lawyer’s

services to commit a crime or fraud

despite the lawyer advising the cli-

ent on the ethical limitations of doing

so. Finally, it permits a lawyer to with-

draw from a representation if the client

insists on using the lawyer’s services to

perpetuate what the lawyer “reasonably

believes” to be a crime or fraud.

The resolution clarif‌ies an implicit

obligation in the existing Model Rules:

Lawyers must “inquire about and assess

the facts and circumstances relating to

a matter” to determine whether they

can accept or continue to represent

a client. For example, Rule 1.1 already

requires lawyers to inquire about and

analyze “the factual and legal elements

of the problem” to provide competent

representation. And Rule 1.4 requires

lawyers to consult with clients about

“‘any relevant limitation on the law-

yer’s conduct’ arising from their client’s

expectation of assistance” that would

violate the Model Rules or the law. The

resolution amending Rule 1.16 therefore

“make[s] explicit that which is already

implicit,” the Ethics Committee and

Regulation Committee state.

While the resolution prioritizes

the laudable goal of stemming cor-

ruption and otherwise unlawful con-

duct, ABA Litigation Section Leaders

observe that the resolution is not

without its drawbacks. “Lawyers may

be more hesitant to represent cli-

ents from certain countries because

of the perceived additional burden

the amendment poses—thus deny-

ing legal representation to an already

underrepresented class of potential

clients,” notes Jeanne M. Huey, Dallas,

TX, Co-Chair of the Litigation Section’s

Ethics & Professionalism Committee.

By Alenah Luthens , Litigation News Contributing Editor

Additionally, “the amendment may dis-

proportionately aect solo and small

f‌irms, which typically do not have the

resources to run extensive background

and other checks that may now be nec-

essary to remain compliant with the

rules,” adds Huey.

Lack of clarity also raises concerns.

“The resolution creates potential ethical

liabilities based on ambiguous terms

and does not address the real problem

of money laundering,” cautions John

S. Austin, Raleigh, NC, Co-Chair of

the Section’s Ethics & Professionalism

Committee. “But many states put their

own spin on the ABA Model Rules and

do not adopt them verbatim, so there is

an opportunity for lawyers to lobby for

changes or ref‌inements to the rule to

address any vagueness concerns when

the amendment is proposed in their

state of licensure,” Huey adds.

While it is uncertain whether state

bar associations will adopt the resolu-

tion as drafted, litigators should nev-

ertheless be prepared for it. “Lawyers

should already have procedures in place

to monitor for conf‌licts throughout

every representation, but the amended

rule provides additional incentive to do

so now. Existing procedures should be

modif‌ied to trigger the relevant inqui-

ries required under the amended rule,”

urges Huey.

RESOURCE

“HOD Strength ens Rule On Duty of

Lawyers To Review Clie nts, Other New

Policies,” ABA News (Aug. 8, 20 23).

SUMMER 2 025 • VOL. 50 NO. 4

9 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD