Wednesday, October 28, 2020
Peter A. Joy and Kevin C. McMunigal (Washington University in St. Louis - School of Law and Case Western Reserve University School of Law) have posted A Lawyer's Obligations to Avoid Assisting in a Crime or Fraud (35 ABA Criminal Justice 74 (Fall 2020)) on SSRN. Here is the abstract:
The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion in which it found that a lawyer has an ethical duty to investigate when a client or prospective client tries to retain a lawyer for a matter that could be legitimate but which further inquiry would reveal to be criminal or fraudulent. In Formal Opinion 491 (2020), the Committee primarily focused on a lawyer's obligations under Model Rule 1.2(d to avoid counseling or assisting a client in crime or fraud in nonlitigation settings. The Committee also considered other duties, such as competence, diligence, communication, honesty, and withdrawal, which the Committee concluded were additional sources of a duty to inquire. In this paper, we evaluate the Committee's analysis and its conclusion that there is a duty to inquire.