April 29, 2020

ABA issues new guidance for lawyers to assess knowledge of the propriety of clients’ activities

CHICAGO, April 29, 2020 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance today outlining a lawyer’s obligations under ABA Model Rules of Professional Conduct to avoid counseling or assisting a client in a crime or fraud in non-litigation settings.

Formal Opinion 491 explains that “knows” under Model Rule 1.2(d), which restricts a lawyer’s conduct when a lawyer “knows” a client’s action is criminal or fraudulent, may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts.

“Where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity,” the opinion said. “Failure to make a reasonable inquiry is willful blindness punishable under the actual knowledge standard of the rule.”

Additionally, the opinion notes that other ABA model rules, including those addressing competence, communication and diligence, may require the lawyer to investigate further. “Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish ‘knowledge’ under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct and to advance the client’s legitimate interests,” the opinion said.

The opinion provides guidance under several scenarios and notes prior ethics opinions and guidance from several states.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

 

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