Response to Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct
State courts regulate U.S. lawyers by adopting rules governing lawyers’ professional conduct and enforcing the rules through disciplinary processes. Since the early 20th century, the American Bar Association (“ABA”) has assisted courts in this task. Most importantly, the ABA has drafted model rules, beginning with the 1908 Canons of Professional Ethics, followed by the 1970 Model Code of Professional Responsibility (“Model Code”), and followed in turn by the 1983 Model Rules of Professional Conduct (“Model Rules”). Given the ABA’s influence, the care with which lawyers draft, and the ABA’s access to America’s top lawyers, one would expect the ABA’s models to be well considered and carefully written. For the most part, they are.
Paul Tremblay’s article, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct, addresses an under-explored ambiguity in the Model Rules concerning the question of whether, and in what circumstances, lawyers may assist clients’ misconduct. The ambiguity arises because, at the same time that Rule 1.2(d) seems to allow lawyers to assist clients in committing certain illegalities, Rule 1.16(a)(1) requires a lawyer to decline or end a representation where “the representation will result in violation of the Rules of Professional Conduct or other law.” Professor Tremblay argues that Model Rule 1.2(d) implicitly authorizes lawyers to aid clients in illegal conduct that is neither criminal nor fraudulent, and that conventional principles of statutory interpretation, aimed at discerning the “drafters’ intent,” favor giving supremacy to this implied authorization. This analysis suggests interpreting “other law” narrowly in Rule 1.16(a)(1) to cover only crimes and frauds. There is a better way to reconcile Rule 1.2(d) and Rule 1.16(a)(1), however.