W. Bradley Wendel
Lawyers’ Constrained Fiduciary Duties: A Comment on Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct
Response to Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct
The Model Rules of Professional Conduct seem to have a blind spot. As Professor Paul Tremblay rightly observes, most legal ethics scholars assert that lawyers are prohibited from assisting “unlawful” conduct or, more broadly, client “wrongdoing.” However, Rule 1.2(d), the rule most squarely on point, states only that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .” Professor Tremblay gives a thorough analysis of the text and drafting history of the Model Rules, comparing the prohibition in Rule 1.2(d) with the broader language of the rule requiring a lawyer to withdraw from representation when it will result in a violation of the Rules of Professional Conduct or “other law,” and also comparing the prohibition in the 1969 Model Code of Professional Responsibility on counseling or assisting illegal conduct—possibly broader than conduct that constitutes a crime or fraud under applicable law. As he points out, there is very little legal authority supporting the view that lawyers are permitted to assist clients in non-criminal and non-fraudulent wrongdoing. For what it’s worth, no lawyer has been disciplined for providing assistance to clients in conduct that is not defined as a crime or fraud, and it may be a violation of due process for discipline to be imposed for this type of assistance, given the clear language of Rule 1.2(d).
Professor Tremblay cites me as a commentator who believes that lawyers are prohibited from assisting clients in unlawful conduct that is not a crime or civil fraud. In this brief comment I will defend that position, but hope to offer an argument with more general significance. My view that lawyers are not permitted to assist clients in legally unpermitted conduct—whether specifically defined as a crime or civil fraud—follows from the fundamental principle that lawyers are agents of their clients and can exercise no more lawful authority than that possessed by clients.