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New opinions guide judges on fines, lawyers on client fraud

May 18. 2020

The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released separate formal opinions addressing the obligations of judges to inquire into a litigant’s ability to pay fines and fees and the duty of lawyers to avoid assisting a client in a crime or fraud in a non-litigation setting.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public.

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Formal Opinion 490 cites the ABA Model Code of Judicial Conduct in advising judges to conduct legally and ethically required ability-to-pay inquiries prior to incarcerating a litigant for nonpayment of court fines, fees or other financial obligations. The opinion cites a longstanding U.S. Supreme Court precedent that “a defendant cannot be incarcerated for failure to pay absent an opportunity to be heard on the question whether the failure to pay is ‘willful’” and whether “there are alternatives to incarceration that would meet the state’s interests.”

Formal Opinion 491 outlines 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. Specifically, it explains that a lawyer’s knowledge of a client’s criminal or fraudulent acts, restricted under Model Rule 1.2(d), includes instances that 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.”

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.

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