Lawyers are obligated to uphold the law while also protecting their clients’ rights. Indeed, it is routine for lawyers to advise clients on whether their approach to an issue is within the bounds of the law. But what is a lawyer to do if they are aware that a client may be considering taking an illegal step?
Those who practice regularly in criminal or white collar law may deal with this issue with some frequency. But for lawyers who do not specialize in that area, it can be difficult to know how to respond when a client mentions, for instance, that they do not intend to comply with the 2020 census (technically against the law) or that they are hiding money from the IRS.
There can be risk when clients seek advice or propose a course of conduct that could run afoul of the law. Attorneys may feel a tension between helping their client and upholding the law. Here are some tips to consider when asked for advice regarding potentially problematic or illegal conduct.
Provide Competent Representation
The duty of lawyers, both to their clients and the legal system, is to provide competent representation, to abide by client decisions and to exercise diligence within the bounds of the law. These duties are set forth in ABA Model Rules of Professional Conduct 1.1, 1.2, and 1.3. Pursuant to their obligation to provide competent representation to clients, lawyers are required to apply the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Lawyers are not permitted to advise clients to engage in conduct that lawyers know is also a violation of any law, nor can lawyers assist clients in violating the law. ABA Model Rule 1.2(d). However, when clients present issues and/or ideas that are potentially contrary to law, lawyers are permitted to provide advice regarding the application or validity of the law at issue. This advice can include an analysis of the risks of potentially violating the law and any punishments that could attach. Id. Thus, lawyers do not have to shut down any conversations that involve a client’s consideration of criminal activity—in fact, the lawyer may aid the client to understand the consequences of that conduct, consistent with the lawyer’s ethical responsibility.
Don’t Go Too Far
Lawyers are not morality counselors, but, as noted above, lawyers are permitted to describe the risks of a client’s noncompliance with the law. When providing advice, however, lawyers may evaluate whether they are going beyond merely presenting objective information about the legal ramification of a particular course of action.
Comment 9 to ABA Model Rule 1.2 states that, “[t]here is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Rule 1.2(d) further distinguishes between attorneys counseling and assisting clients in criminal or fraudulent conduct, which is prohibited, and attorneys who merely discuss the legal consequences of an act or otherwise assist clients in making a good faith effort to determine the scope or meaning of the law, which is permitted.
If an attorney recommends the means by which a crime or fraud might be committed with impunity, this could run afoul of the attorney’s ethical obligations.
Maintain Attorney-Client Privilege and Confidentiality
The importance of attorney-client privilege and the confidentiality inherent in the attorney-client relationship cannot be overstated: those protections encourage clients to speak forthrightly and truthfully to lawyers, thereby promoting the disclosure of all relevant information. The creation of the “zone of privacy” stimulates candor and honesty that allows lawyers to provide sound legal advice and effective advocacy. Therefore, it is unsurprising that the rules of professional conduct in a majority of U.S. jurisdictions emphasize the importance of maintaining confidentiality, even when the attorney has knowledge of potentially illegal conduct by a client.
In particular, the rules provide that even when the attorney is aware that a client is about to commit a serious crime, lawyers are not required to disclose that confidential information. Indeed, it is to the attorney’s discretion. ABA Model Rule of Professional Conduct 1.6(b)(1)-(2) provides that a lawyer may, but is not required to, reveal confidential information to the extent the lawyer reasonably believes is necessary to prevent certain death or substantial bodily harm, or to prevent substantial injury to the financial interests of another if the client used the lawyer’s services in furtherance of the potential financial crime.
Accordingly, lawyers are likely prohibited from disclosing their clients’ potential crimes that will not result in serious bodily harm or financial harm under Rule 1.6. Attorneys who do not take their duty of confidentiality seriously may face their own punishment.
Seek Advice From Others
Although lawyers are prohibited from encouraging illegal conduct by their clients, lawyers are not precluded from providing advice regarding what conduct may be deemed illegal or from discussing the potential consequences of illegal activity. For that reason, the fact that a client nonetheless decides on a course of action that is criminal or fraudulent does not usually make the attorney a party to that course of action.
However, these issues can involve a number of complicating factors. Attorneys faced with a client who is considering criminal acts, notwithstanding the attorney’s contrary advice, may consider seeking the advice of their firm’s in-house counsel or of outside counsel specializing in liability issues to help clarify their role and obligations to their client. Attorneys can also be careful to ensure that they are not assisting the client with any criminal conduct. Indeed, if attorneys provide advice to facilitate or assist with a crime or fraud, the privilege may no longer apply under the crime-fraud exception to privilege (not to mention any other criminal penalties that the attorney could face for facilitating or assisting a client’s crime or fraud).
Keeping these tips in mind when providing advice can help lawyers provide competent representation to clients and avoid potential ethical violations—even if their clients are on the wrong path.