May 27, 2020 Chair's Column

Chair's Column: May 2020

The Lawyer’s Duty To Avoid Scams

By Albert C. Harvey

One of the more interesting things which has occurred during COVID-19 shutdown of activities has been an evaluation of the function of many of our institutions. The ABA has not escaped this overlook. With the cancellation of all its in-person events, will the ABA survive? If so, will its form change?

One aspect of our national professional organization which will continue to prove its worth is the establishment and maintenance of our professional ethics. 

For over 100 years, the ABA has provided the models for regulating the legal profession. In 1908, the ABA adopted the original Canons of Professional Ethics. A standing committee was established to maintain the standards and to assist state and local bar association concerning professional ethics. A major change came in 1969, after years of study, when the Model Code of Professional Responsibility was produced. It was subsequently adopted by the vast majority of state and federal jurisdiction. The Code offered both rules to regulate the profession and best practice guidance for lawyers. 

After another study, the ABA House of Delegates, in 1983, replaced the Code with the Model Rules of Professional Conduct. After a number of  amendments and adjustments were adopted over the next several years, the ABA created the Ethics 2000 Commission to comprehensively review the Model Rules. In 2002, the House of Delegates approved most of the recommendations of Ethics 2000. Another review occurred in 2013. 

The ABA Standing Committee on Ethics and Professional Responsibility has, from time to time, seen the need to interpret and fill gaps in the Model Rules. This committee of ten to twelve knowledgeable members has produced and published Formal Opinions to address needed interpretations. The latest Formal Opinion is relevant to this issue of Voice of Experience, with its theme of scams affecting seniors.

Formal Opinion 491, published April 29, 2020, concerns the duty of a lawyer to avoid counseling or assisting in a crime or fraud in a non-litigation setting. The opinion notes that lawyers have become complicit in scams, either willingly or innocently. It has often occurred when a client or prospective client has tried to retain a lawyer for a transaction that could be legitimate, but which further inquiry would reveal to be criminal or fraudulent. 

The opinion states that the lawyer cannot simply turn a blind eye by claiming that he or she was not positive that the client was involved in criminal activity. Rather, the lawyer has a duty to inquire and not ignore the obvious. “Where there is a high probability that a client seeks to use the lawyers’ services for criminal or fraudulent activity, the lawyer must inquire further to avoid advising or assisting such activity.”

If the client refuses to provide the necessary information, the lawyer must withdraw or decline representation. Other actions may also be required by other rules, including disclosure of information. 

Once again, the ABA has recognized its duty to give guidance to lawyers on proper ethical conduct to avoid damage to both the public and to the reputation of the profession. The Preamble to the Model Rules says it best: “Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.”

Respectfully,
Al Harvey, SLD Chair

Author

Albert C. Harvey has an extensive practice in federal and state courts defending doctors, lawyers, architects, engineers, and other professionals. He is involved in complex business litigation, intellectual property disputes, and securities cases.  Mr. Harvey has a special interest in national security and governmental affairs and frequently lectures, teaches, and consults with clients on these matters. In addition, he has served at the state and national levels on setting ethical standards for lawyers and judges. Mr. Harvey recently retired from the United States Marine Corps Reserve with the rank of Major General.