Ethics Guidelines for Legal Work: ABA Opinion on Preventing Criminal Conduct
Lawyers play a crucial role in upholding the law and ensuring justice in society. However, there are instances where legal professionals may unintentionally find themselves entangled in criminal or fraudulent activities conducted by their clients. To address this issue and provide guidance to lawyers, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 513.
Formal Opinion 513 focuses on Model Rule 1.16(a) of the ABA Model Rules of Professional Conduct, which was amended in 2023 due to concerns about lawyers being inadvertently involved in criminal or fraudulent activities. The opinion emphasizes the importance of lawyers assessing the facts and circumstances of every client’s situation to prevent their representation from contributing to or furthering criminal or fraudulent conduct.
The opinion states that if a lawyer has “actual knowledge” that their services will advance a client’s criminal or fraudulent activity, they must decline the representation. Similarly, if there is a high probability that their services will further such activities and the lawyer chooses not to inquire further, it constitutes “knowing assistance of criminal or fraudulent activity.”
Furthermore, the opinion highlights the importance of conducting a reasonable investigation into a client’s background and intentions. While lawyers are not expected to uncover every single detail about a client, they must undertake a thorough inquiry to ensure they are not inadvertently aiding criminal behavior.
In cases where doubts remain even after a reasonable inquiry, the opinion allows lawyers to proceed with the representation as long as they believe it is unlikely to involve assisting or furthering a crime or fraud. However, if a client refuses to provide necessary information or cooperate with the lawyer’s investigation, the lawyer may have to decline or withdraw from the representation.
The opinion also emphasizes the need for lawyers to follow a risk-based approach in assessing potential criminal or fraudulent activities. Factors such as the lawyer’s experience with the client, money transactions in trust accounts, and the jurisdictions involved in the business must be considered to determine the level of risk.
For example, if a client who typically engages in local real estate transactions suddenly presents a complex corporate structure involving multiple jurisdictions, the lawyer may need to conduct further inquiries to ensure compliance with ethical standards. By being vigilant and proactive in assessing risks, lawyers can better prevent unintentional involvement in criminal or fraudulent activities.
In conclusion, Formal Opinion 513 serves as a valuable resource for lawyers to navigate ethically challenging situations and uphold the integrity of the legal profession. By adhering to the guidelines outlined in the opinion and conducting thorough investigations into clients’ backgrounds and intentions, lawyers can play a vital role in preventing criminal conduct and upholding the principles of justice and fairness in society.
