Factual Inquiry in Accepting and Continuing Representations
The Bencher—November/December 2024
By John P. Ratnaswamy, Esquire

Until August 2023, American Bar Association (ABA) Model Rule of Professional Conduct (MRPC) 1.16 on “Declining or Terminating Representation” focused on a lawyer’s withdrawal from a representation, not on a lawyer’s accepting a representation in the first place.
Then, in August 2023, MRPC 1.16 was amended to address in a more balanced way acceptance of, and continuing, a representation. On August 23, 2024, the ABA Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 513 on “Duty to Inquire Into and Assess the Facts and Circumstances of Each Representation,” providing further guidance on this subject.
New subsection (a) of MRPC 1.16 states:
(a) A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation. Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;
(3) the lawyer is discharged; or
(4) the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.
In my view, there are two key takeaways from amended MRPC 1.16(a) and Opinion 513. First, the ethics aspects of a lawyer’s intake process are not only about assessing the lawyer’s competence to perform the work and possible conflicts of interest, but also about the lawyer’s risk of assisting the potential or existing client in committing fraud or a crime, such as money laundering or terrorist financing. Those points are indicated by MRPC 1.16(a), its amended Comments [1] and [2], and Opinion 513.
Second, the lawyer’s intake and review processes should be “risk-based.” That point is indicated in Comment [2] and Opinion 513, and it is elaborated upon at the practical guidance level in both documents. Comment [2] appears under the heading “Mandatory Withdrawal,” but it addresses both intake and continuing representation. Comment [2], which focuses on fraud and crime concerns, now states in part “[T]he required level of a lawyer’s inquiry and assessment will vary for each client or prospective client, depending on the nature of the risk posed by each situation.” Comment [2] goes on to suggest that:
Factors to be considered in determining the level of risk may include: (i) the identity of the client, such as whether the client is a natural person or an entity and, if an entity, the beneficial owners of that entity, (ii) the lawyer’s experience and familiarity with the client, (iii) the nature of the requested legal services, (iv) the relevant jurisdictions involved in the representation (for example, whether a jurisdiction is considered at high risk for money laundering or terrorist financing), and (v) the identities of those depositing into or receiving funds from the lawyer’s client trust account, or any other accounts in which client funds are held.
Comment [2] also points to further guidance outside the MRPC.
Opinion 513 discusses what it means for the lawyer to conduct such a “riskbased” inquiry and what situations will or may “trigger” a review of an existing representation. Opinion 513 echoes Comment [2] on the point that what a given situation requires will vary, stating that: “A risk-based approach also incorporates the concepts of reasonableness and proportionality” and recognizes that many common situations are “low risk.”
Opinion 513 also offers further practical guidance, pointing to other rules, prior formal opinions, and the committee’s own views, including discussion of two hypotheticals and addressing what the lawyer may do if reasonable inquiry does not resolve all doubts.
John Ratnaswamy is the founder of The Law Office of John Ratnaswamy LLC in Chicago, Illinois. He has served as an adjunct professor of legal ethics at the Northwestern University School of Law, a member of the Hearing Board of the Illinois Attorney Registration & Disciplinary Commission, and as a member of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility. This column should not be understood to represent the views of any of those entities or Ratnaswamy’s or the firm’s current or former clients.