The Client-Lawyer Relationship · 10-16% of the exam
4.2.3Counsel within the bounds of the law (Rules 1.2(d), 2.1)
Why
A lawyer available to plan a fraud converts legal training into a criminal instrument, and one who tells clients only what they want to hear sells reassurance in place of judgment. What the client actually needs is an honest map of the ground, including the parts of it the client would rather not look at.
Plain English
A lawyer shall not counsel or assist conduct the lawyer knows is criminal or fraudulent. Discussing the legal consequences of a proposed course, including that a statute is rarely enforced but not advising violation, stays permitted, as does a good-faith effort to determine the law's validity, scope, meaning, or application. Rule 2.1 asks for independent professional judgment and candid advice; saying what the client wants to hear, when false or misleading, breaches it.
Context. Describing consequences of illegal conduct is permitted; advising engagement in it is not; Rule 2.1 requires candid advice regardless of what the client wants to hear. Put it as one question: is the lawyer describing the course, or recommending it?
The rule (Rules 1.2(d) and 2.1):
Rule 1.2(d) — the bright line. A lawyer shall not counsel a client to engage in, or assist a client in, conduct the lawyer knows is criminal or fraudulent.
"Fraudulent" (Rule 1.0(d)): conduct that
- is fraudulent under the substantive or procedural law of the applicable jurisdiction and
- has a purpose to deceive.
Comment [5]: merely negligent misrepresentation, or negligent failure to apprise another of relevant information, does not qualify.
Permitted under Rule 1.2(d): two things —
- Discussing the legal consequences of any proposed course of conduct, including noting a statute is rarely enforced, but not advising violation.
- Making a good-faith effort to determine the validity, scope, meaning, or application of the law, including testing a statute's constitutionality.
Rule 2.1 — candid advisor. The lawyer shall exercise independent professional judgment and render candid advice. The lawyer may refer to law, moral, economic, social, and other relevant considerations. Telling the client what the client wants to hear, when false or misleading, violates this duty. The lawyer may volunteer advice the client did not request; when the lawyer knows the client is contemplating a course of action related to the representation that would likely produce substantial adverse legal consequences, offering that advice may be required.
Example 1
Ex. 1
Jay, facing divorce, asked his attorney whether he could transfer business assets to his brother before filing. The attorney explained the fraudulent-conveyance risk in detail, then, when Jay asked "Should I do it? Detection is unlikely," replied: "Your call. Detection is unlikely." That response crosses the Rule 1.2(d) line. "Your call" implied neutrality; framing detection odds as low functioned as a green light for a fraudulent act. Hear the answer as Jay did — it came straight after "Should I do it?"
Example 2
Ex. 2
Lena asked her attorney whether she could terminate her business partner without following the partnership agreement's buyout procedure. The attorney explained the breach risk and quantified the exposure. When Lena asked whether people "got away with it," the attorney replied: "Some do, but this is a breach. I cannot advise you to skip the process." No violation. Describing consequences and declining to advise the illegal course is exactly what Rule 1.2(d) permits. Underline the sentence that saved Lena's attorney: "I cannot advise you to skip the process."
Trap
Trap
Tip
Questions · 1
Q 01ch04-e08
Question 1 of 1 · Rule 1.2
Attorney advises Client, who sells refurbished printing presses. Client plans to list a press as factory-reconditioned although Client knows it was rebuilt in a shed from salvaged parts, and asked Attorney about doing so. Attorney explained that the description would be a knowing misrepresentation to buyers, that it would expose Client to fraud liability, and that the state trading officers open very few files a year. Client then asked whether to go ahead given those odds. Attorney answered that it was Client's call and that nobody checks these listings. Client ran the listing. Is Attorney subject to discipline?
Keys 1 to 4 choose.