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Ethics Corner

Wendy J. Muchman

The American Bar Association Standing Committee on Ethics and Professional Responsibility (SCEPR) has been busy these last months issuing four Formal Ethics Opinions. This piece will touch on two of them, but please note that this is a short summary of the opinions discussed and is not intended as a substitute for reading the full opinion.

On April 29, 2020 SCEPR issued Formal Ethics Op. 491, "Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings." For some years now, various interested entities have been seeking mechanisms to combat terrorist financing and money laundering. Concerns exist about lawyers' roles in those transactions because lawyers may participate in transactions that on the surface appear legitimate but with inquiry may be revealed to be criminal or fraudulent. The opinion elucidates lawyers' responsibilities to inquire further if facts known to the lawyer establish a "high probability that the client seeks to use the lawyers' services for criminal or fraudulent activity." Rule 1.2(d) has a knowledge standard: "Knowledge can be inferred from the circumstances including a lawyer's willful blindness or conscious disregard of the facts." Accordingly, even if early information acquired by a lawyer is insufficient to establish knowledge, lawyers have other duties: competence, diligence, communication, candor and withdrawal, requiring additional assessment of the legitimacy of the client's interests. According to the opinion, if the client refuses to cooperate with the lawyers' efforts to further inquire, the lawyer must decline or withdraw from the representation. "A lawyer's reasonable evaluation after inquiry based on information reasonably available at the time," will protect a lawyer from a violation of the Rules. The moral of the opinion is that lawyers cannot be ostriches with their heads in the sand.

Harassment and discrimination remain a problem negatively impacting society and the legal system. Model Rule 8.4(g) is the ABA anti-harassment and discrimination rule adopted in August 2016 after years of study and consideration by the ABA. The rule prohibits a lawyer from "engag[ing] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." On July 15, 2020 the SCEPR issued Formal Opinion 493 Model Rule 8.4(g): Purpose, Scope, and Application to further illuminate the Rule's aims. The importance of the role that lawyers play in society, "as public citizens having special responsibility for the quality of justice" is emphasized in various ways throughout this opinion. Accordingly, when lawyers engage in harassing and discriminatory conduct, the result "engenders skepticism and distrust of those charged with ensuring justice and fairness."

There has been some concern that the rule is overly broad. Per the opinion, a violation of the rule is not established because others may "personally disagree with or be offended by a lawyer's expression." While the rule has a "know or reasonably should know" standard, the opinion explains that "the most common violations will likely involve conduct that is intentionally discriminatory or harassing." The rule prohibits conduct that is "not covered by other law, such as federal proscriptions on discrimination and harassment in the workplace." Comment 3 of the rule outlines the meaning of "discrimination" and "harassment" and defines discrimination as including "harmful verbal or physical conduct that manifests bias or prejudice towards others." Another concern about the rule has been whether it improperly impinges on lawyers' free speech rights. The opinion explains that lawyers may "freely express opinions and ideas on matters of public concern," and does not "limit a lawyer's speech or conduct in settings unrelated to the practice of law."

Enforcement of Rule 8.4(g) is vitally important to maintaining the public's confidence in the objectivity of the legal profession and our justice system.

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    Wendy Muchman

    Harry B. Reese Teaching Professor of Practice

    Wendy Muchman is the Harry B. Reese Teaching Professor of Practice at Northwestern University Pritzker School of Law. She is the immediate past president of the National Organization of Bar Counsel and currently serves as the vice chair of the Division.