Many representations are after-the-fact affairs, meaning the lawyer is hired to review a client’s past conduct and provide advice or a (criminal or civil) defense of that conduct. At that time, what’s done is done. But that is not how all representations occur. In their role as advisers, attorneys are also asked to opine on a course of conduct before it occurs, as the client weighs its options.
In such circumstances, lawyers typically discuss the pros and cons, including the associated risks. But this advice can get much more complicated where the client is considering conduct that might break the law. If the client is determined to act in a certain way notwithstanding the law, there can be a tension between, on one hand, a lawyer’s obligation to uphold the law and, on the other hand, the obligation to protect the client’s rights.
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That dilemma may arise more commonly for attorneys specializing in criminal or white collar law, but it is not limited to those practice areas. In any context, a client may state an intent to violate its tax obligations, for example, with the hope that they won’t get caught. Or, as a recent example, a client may want access to COVID relief funds under the CARES Act, despite not qualifying for such funds.
There can be risks for the attorney when the client intends to cross the line into clearly improper conduct. Attorneys must carefully consider their ethical obligations, particularly when it comes to the disclosure of confidential communications. Below are some tips to consider when asked for advice regarding potentially problematic or illegal conduct.
Consider the Core Ethical Obligations
The basic duties owed by lawyers include 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 California 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.
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However, 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. California Rule of Professional Conduct 1.2.1. However, when clients present issues 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. 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 ramifications of that conduct, consistent with the lawyer’s ethical responsibility.
Know Where to Draw the Line
The rules provide lawyers with some leeway when it comes to advising clients as to the risks of 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 [1] to Rule 1.2.1 states that “[t]here is a critical distinction under this rule 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.” The rule 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.
Remember 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.
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In particular, the California 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, and indeed may be prohibited from doing so. Comment [2] to Rule 1.2.1 provides that, in complying with the rule, “a lawyer shall not violate … the duty of confidentiality as provided in Business and Professions Code Section 6068, subdivision(e)(1) and rule 1.6.” That rule provides that an attorney “may” reveal confidential information only “to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”
Recognizing that such circumstances may not always be present even where the client is breaking the law, the comments to Rule 1.2.1 observe that, rather than disclose confidential information, in some cases lawyers’ options include only their “right and, where appropriate, duty to resign or withdraw” from the representation. Attorneys who fail to recognize that confidentiality obligations remain intact even where the client is actively breaking the law may face their own punishment.
Get an Outside Opinion
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 be vitiated by 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).
Paying close attention to the ethical rules when providing advice can help lawyers provide competent representation to clients and avoid potential liability or punishment—even if their clients are on the wrong path.
Source: https://tholansonnha.com
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