Limits on Client Objectives

Limits on Client Objectives

A client sets the objectives of a representation, and the lawyer abides by them, but the duty has two limits. The first, covered earlier in this chapter, lets a lawyer narrow the scope of an engagement when the narrowing is reasonable under the circumstances and the client gives informed consent.¹ The second appears in Model Rule 1.2(d): "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."²

The second limit exists because a lawyer's help is valuable to anyone carrying out a plan, and a client with an unlawful aim has every reason to want it. If loyalty to the client's goals reached every goal, the lawyer's skill would become an instrument against third persons and the public. The duty to abide therefore covers lawful purposes only. A client who wants to hide assets from a creditor through a sham transfer holds an objective of the client's own, yet the lawyer cannot pursue it, and Rule 1.2(d) explains why.

The sentence turns on its but. Before it comes a prohibition: the lawyer may not counsel or assist conduct the lawyer knows is criminal or fraudulent. After it comes a zone of protected advice: the lawyer may discuss legal consequences and may help the client make a good faith effort to learn what the law means and how it applies. The zone is protected because a client who is denied candid advice about legal limits will still act, only without understanding them. The lawyer thus serves the client's lawful goals fully, declines to join the unlawful ones, and stays free to tell the client where the line falls.

Prohibited Assistance

Rule 1.2(d) forbids a lawyer to "counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent."³ Its two verbs reach two moments in the lawyer's work. To counsel is to recommend or urge, which can happen before the client has settled on any plan. To assist is to help once the client is moving: drafting documents, structuring a transaction, or performing a step the scheme requires. Because the duty to abide is subject to this prohibition, the client's ownership of an objective gives the lawyer no license to serve one that is criminal or fraudulent.

The prohibition exists because a lawyer's contribution often makes a scheme workable. A fraud usually needs documents that look regular, a structure that survives scrutiny, and a professional whose involvement lends credibility, and a lawyer can supply all three. A lawyer who supplies them to a plan known to be unlawful has stopped advising and begun participating.

Knowledge is the trigger because it identifies real complicity without chilling honest representation. If suspicion were enough, a lawyer would have to turn away every client whose plan looked aggressive, unusual, or risky, and the clients in gray areas, who most need someone to explain where the line runs, would proceed alone. A lawyer who merely suspects wrongdoing has not joined it. The rule asks whether the lawyer actually knows that the conduct is criminal or fraudulent, and the knowledge most often comes from the client's own account of the plan. An exam stem in which the lawyer "suspects" or "worries" describes something different from a stem in which the client announces the unlawful purpose.

The same lawyer, approached by a different client, stands in an entirely different position.

The two scenes turn on what the lawyer knows about the character of the conduct. The chance of an audit does not put a lawful position off limits, while a plan the lawyer knows to be fraudulent is off limits however smoothly it might proceed.

The prohibition also reaches help with concealment. A client who has already done wrong may ask for help hiding it, and the hiding, whether by falsifying a record or covering a trail, is further conduct that the lawyer knows is fraudulent. The lawyer remains free to explain what the law provides, including the penalties that attach to the conduct; the next subsection develops that proviso.⁴ The dividing line falls between telling the client what the law says and showing the client how to get away with breaking it.

The same logic governs an ongoing representation. Suppose the client is already using the lawyer's services to carry out a crime or fraud, for example through closing documents the lawyer keeps preparing for a scheme the lawyer now understands. Each further act of service is then assistance, so continuing the engagement would itself violate Rule 1.2(d).⁵ Refusing a single task does not cure the problem when the engagement as a whole is the instrument of the wrongdoing. The lawyer must withdraw, and Rule 1.16 governs how.

A related principle covers the client who gives an instruction rather than announcing a scheme. The Restatement provides that a lawyer is not required to carry out an instruction the lawyer reasonably believes to be contrary to professional rules or other law, and that a lawyer whose client persists in a wrongful instruction would need to withdraw.⁶ The Restatement standard differs from the rule's in two ways. It requires only reasonable belief, which is less than knowledge, and it reaches violations of professional rules and other law generally, a wider category than crime and fraud. A lawyer who is unsure whether conduct is criminal can therefore decline an instruction that reasonably appears unlawful without first establishing that the lawyer knows it to be so.

Advising on Legal Consequences

The second half of Rule 1.2(d) keeps the prohibition from swallowing the lawyer's ordinary work. After forbidding a lawyer to counsel or assist conduct the lawyer knows is criminal or fraudulent, the rule continues: "but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."⁸ The proviso grants two separate permissions. The first lets the lawyer discuss consequences: what a proposed course of conduct would set in motion, including penalties, civil liability, and lawful ways of reaching the same goal. The second lets the lawyer counsel or assist a good faith effort to find out what the law is, whether the doubt concerns its validity, its scope, its meaning, or its application to the client's facts.

The first permission exists because explaining consequences is the core of what a lawyer is hired to do. A client weighing a plan has usually not yet committed to it, and the lawyer is often the only person who can say what the plan would cost. A rule that forbade even discussing a plan that might prove unlawful would silence the lawyer at the moment when speaking does the most good. The client would still decide, only without understanding the law. The permission also matches the wording of the prohibition. To counsel conduct is to recommend or urge it, and a lawyer who tells a client what a violation would cost describes the law and recommends nothing.

The permission is not confined to doubtful cases. A lawyer who has learned that a client's plan is plainly unlawful may still explain why it is unlawful, what it would cost, and which lawful routes remain, and that explanation is often the most effective way to turn the client away. The proviso therefore protects the lawyer's best response to a bad plan as well as the response to a gray one.

The second permission rests on a different reason. The law is not always clear. Statutes can be ambiguous, regulations can reach beyond the authority that supports them, and a new rule may or may not cover the client's particular facts. Conduct is criminal or fraudulent only if the law actually makes it so, and where the validity or reach of a rule is honestly in doubt, the way to find out is for someone to put the question to a decision-maker. If lawyers could not help clients ask that question, only clients willing to act without advice and wait for a prosecution could test a doubtful rule, and unclear requirements would be settled by guesswork. The proviso allows the question to be asked in advance, openly, and with counsel's help.

Good faith limits this permission. The effort must be a genuine attempt to learn what the law requires, and a lawyer who knows from clear authority that a practice is unlawful cannot relabel a plan to evade enforcement as a test of the law. The difference shows in how each approach treats the decision-maker. A good faith challenge puts the legal question before an agency or court and accepts the answer, while concealment depends on no decision-maker ever asking.

An exam stem usually tests this boundary by letting one conversation run past the point where explanation ends.

The words the lawyer actually says decide which side of the line the advice falls on, and two errors mirror each other. A lawyer who reads the prohibition too broadly refuses even to discuss a doubtful or unlawful plan, and the proviso answers that error by protecting the discussion. A lawyer who reads the proviso too broadly treats any help as advising on the law, and the good faith requirement and the knowledge standard answer that one. The previous subsection showed that a lawyer who merely suspects wrongdoing has not joined it, so the proviso does its most visible work where the lawyer does know the plan is unlawful, or where the facts sit close to the line.

The first step does most of the work on exam facts, and the third catches the stem that dresses a scheme up as a good faith inquiry.