June 08, 2020 Articles

ABA Issues Guidance on Lawyers' Duties Regarding Clients' Fraudulent, Criminal Behavior

Actual knowledge of a client’s intended or ongoing criminal or fraudulent conduct could be viewed as an invitation to a lawyer to turn a blind eye toward the client’s improper conduct.

By Thomas G. Wilkinson Jr. and Douglas B. Fox

The American Bar Association’s Model Rule of Professional Conduct 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. The text of the model rule states:

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

The rule sounds simple enough, and plainly suggests that a lawyer must have actual knowledge of a client’s intended or ongoing criminal or fraudulent conduct before other professional duties may be triggered, such as the lawyer refusing to act on the client’s behalf or withdrawing from the representation. This reading is consistent with Model Rule 1.0(f), which states that to “know” something “denotes actual knowledge of the fact in question.” Model Rule 1.0(f) clarifies that a person’s knowledge may be inferred from the circumstances. 

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