12.02. Prohibition on Advising a Client on How to Engage in Criminal or Fraudulent Conduct [Rule 1.2(d)]

A lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” (Rule 1.2(d)).  This is one of those common sense prohibitions in the ethics rules.  So, if a client comes into your office and says “how can I defraud my customers and get away with it?”, you are ethically prohibited from providing legal advice on how the client can engage in the fraud.

The rule does recognize a situation where you can advise a client to break the law – and that is where the lawyer is seeking to “make a good faith effort to determine the validity, scope, meaning or application of the law.” (Rule 1.2(d)).

Charlie Client is a doctor.  Recently, the state where Client practices enacted a law stating “it is unlawful for physicians in the state to advise their patients on the right to an abortion or to mention abortion in the course of consultation.”  Client goes to Laren Lawyer about the prohibition.  Lawyer believes the law violates Client’s First Amendment rights and advises him to “disregard the law and advise your patients about the right to an abortion.”  Has Lawyer acted unethically? [ABA Rule 1.2, Comment [13]]

No.  So long as Lawyer has a good faith belief that the law is unconstitutional then she can advise Client to violate the law. As the Comment to Rule 1.2 states: “determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.”[1]

It is important to note what this Rule does not prohibit.  It does not prohibit a lawyer from advising a client about the consequences of a course of conduct.  That is precisely what we want lawyers to do.  Here is how a Comment to Rule 1.2 puts it: “[The prohibition on knowingly counseling a client to commit a crime or fraud], does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. . . . There 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.”[2]

Caleb Client owns International Widgets and sells widgets around the country.  Client approaches his attorney, Lance Lawyer, about an issue that has arisen.  A foreign government is demanding a bribe to allow Widget’s products into the country.  Lawyer advises Client that it is a violation of law for the company to pay a bribe to the foreign official, and they should not go forward with it.  Client says, “Ok, thanks.”  Thereafter, Client, relying on the advice provided by Lawyer) has his sister pay the bribe to the foreign official (to avoid the bribe coming “from” the company).  Client did this solely to avoid bribery laws, which is a crime.  Did the lawyer act unethically? [In re Grand Jury Subpoena, 745 F.3d 681 (3rd Cir. 2014)]

No.  The lawyer merely provided an analysis of the client’s situation.  That is exactly what a lawyer should do.  The fact that the client then used the lawyer’s advice to commit a crime does not make the lawyer’s actions unethical.  However, once the lawyer learns that the client is using the lawyer’s advice to violate the law, the lawyer must withdraw from the representation.  Recall that under the withdrawal rule (1.16(a)(1)), a lawyer must withdraw when representation would violate the ethical rules.  Also, remember from the topic on attorney-client privilege – the government will be able to require the lawyer to discuss this conversation because it falls within the crime-fraud exception to the privilege.

In the fact pattern above, Lawyer has only given advice to Client.  Sometimes a lawyer may submit documents to the court or third parties before the lawyer becomes aware that the client is using the lawyer’s services inappropriately, and the lawyer incorporates the misrepresentations/lies of the client in the documents.  In these situations, the lawyer must disaffirm any documents filed by the lawyer in reliance on the client’s misrepresentation.  This is required by Rule 4.1(b) which says: “In the course of representing a client a lawyer shall not knowingly: … (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”  Disaffirm means to make the court/third-party aware that they cannot rely on the document prepared by the lawyer.  It does not require the lawyer to disclose the client’s misrepresentation.  However, there are situations where a lawyer may be required to actually disclose the client’s fraud/misrepresentation (for example when the crime-fraud exception applies).  In those situations, a lawyer is authorized to disclose communications with the client. 

This creates a three-tier consideration for a lawyer.  First, the lawyer definitely must withdraw from the representation when the client is using the lawyer’s advice to commit a crime/fraud.  Then, if necessary, to address a misrepresentation/lie by the client that the lawyer has used in a document, the lawyer shall disaffirm the document.  In the most extreme situations, a lawyer may also have to actually disclose the misrepresentation to the court/third party.

[1] ABA Rule 1.2, Comment [12].

[2] ABA Rule 1.2, Comment [9].