70 Fla. L. Rev. 251 (2018)
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Abstract

The common, shared vision of lawyers’ ethics holds that lawyers ought not collaborate with clients in wrongdoing. Ethics scholars caution that lawyers “may not participate in or assist illegal conduct,” or “giv[e] legal services to clients who are going to engage in unlawful behavior with the attorney as their accomplice.” That sentiment resonates comfortably with the profession’s commitment to honor legal obligations and duties, and to remain faithful to the law. The problem with that sentiment, this Article shows, is that it is not an accurate statement of the prevailing substantive law. The American Bar Association’s (ABA) model standards governing lawyers prohibit lawyers from assisting clients with illegality, but only in certain defined categories—that is, crimes and frauds. The standards, adopted by virtually all states, do not prohibit participation by lawyers in the remaining universe of unlawful conduct. The aim of this Article is to understand the meaning and scope of this apparent acceptance of lawyers’ collaboration with unlawful client action. Surprisingly, legal ethics commentary has not explored the nature of the constraints on such collaboration.

This Article offers, as orienting examples, three stories from the entrepreneurial startup world in which clients have requested legal help with activities that are unlawful but may not be criminal or fraudulent. The stories provide a base from which to explore whether all wrongdoing or illegality ultimately equates to something criminal or fraudulent. Examining the text and history of Model Rule 1.2(d), this Article demonstrates that the ABA (and, presumably, the states that adopted the language) intended the Rule’s limitation to mean what it says. Some lawyer participation with unlawful action might be prohibited through the operation of “other law.” In general, however, no outside authority limits a lawyer’s assistance with client wrongdoing—if “unlawful” activity equates to wrongdoing. The startup stories show that “unlawful” is not always synonymous with “wrongful,” although, of course, it often will be.

Lawyers therefore have discretion—but, as this Article shows, no duty—to aid clients in some activities that are illegal. Lawyers must exercise that discretion responsibly, even where no legal sanction or penalty would apply. Relying on the “moral activism” insights that inform lawyer decision making in determining how aggressively to assert legal entitlements when third-party interests are at stake, this Article concludes that lawyers ought to resist aiding those clients whose unlawful actions engender moral harm or injustice.