Concept
Permissible Legal Advice
Counseling or assisting criminal or fraudulent conduct (Rule 1.2(d))
Permissible Legal Advice
Rule 1.2(d) forbids a lawyer to counsel or assist conduct the lawyer knows is criminal or fraudulent, and then it turns on the word “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.”1 These two permissions are the rule’s safe harbors. They mark the part of a lawyer’s work that stays protected even when a client arrives with a plan that looks questionable.
The harbors are necessary because the prohibition’s verbs are broad. A lawyer who explains how the tax code would treat a risky plan has, in a loose sense, helped the client understand it, and a lawyer who researches whether a statute reaches the plan has helped the client probe it. Without an express carve-out, a rule against counseling and assisting could punish that work along with real participation. The attorney-client privilege rests on the opposite policy, because it exists to encourage people to obtain a lawyer’s help in conforming their behavior to the law.2 A rule that sanctioned accurate description of the law would leave clients to learn what it allows from a prosecutor or a court, after they had acted.
The two clauses protect different things. The first covers informing a client about the consequences of a proposed course, and the second covers helping a client find out what an uncertain law means before acting on it. Both rest on a line between informing the client and directing the client. The last subsection locates the point where a protected conversation turns into prohibited help, because the safe harbors give no shelter to a lawyer who recommends the means by which a known crime or fraud will be carried out.
Discussing Legal Consequences
The first permission is short and broad: a lawyer “may discuss the legal consequences of any proposed course of conduct with a client.”3 The word “any” reaches a plan the lawyer already believes is illegal. Discussing differs from counseling in the sense the prohibition uses. Counseling recommends the conduct and puts the lawyer’s judgment behind the decision, while discussing describes what the law will do to a client who takes a given step and leaves the choice with the client. A lawyer may therefore investigate whether a proposal is lawful and report what the investigation shows. Without that freedom, no lawyer could talk a client out of unlawful conduct, because explaining why a plan is illegal means describing the plan, the law it violates, and the penalty that follows.
The comment to Rule 1.2 turns the freedom into a duty: a lawyer “is required to give an honest opinion about the actual consequences that appear likely to result from a client’s conduct.”4 A permission to speak that left the lawyer free to shade the forecast would leave the client choosing on a picture the lawyer knew was wrong. The words “actual” and “likely” direct the lawyer to predict what will probably happen, unwelcome parts included, and to leave out what the client hopes to hear.
A client’s later use of advice in a criminal or fraudulent course of action does not, of itself, make the lawyer a party to that course.5 A lawyer who gives the honest forecast therefore need not fear that the client’s later choice will be charged to the lawyer. The limit follows in the same comment: a lawyer may not knowingly assist a client in criminal or fraudulent conduct.6
The Supreme Court drew a similar line in Milavetz, Gallop & Milavetz, P.A. v. United States, which construed a federal bankruptcy statute restricting the advice a professional may give a debtor. On the Court’s reading, the prohibited advice is not defined by abusive prefiling conduct. It is defined by “the incurrence of additional debt when the impelling reason is the anticipation of bankruptcy.”7 The Court cited Rule 1.2(d) with a “cf.” signal, as a comparison, and added that even if the statute were less clear it would reach the same conclusion “because the inhibition of frank discussion serves no conceivable purpose within the statutory scheme.”8
The line the Court drew is the one Rule 1.2(d) draws. A professional who explains to a debtor what the law does with debt run up in anticipation of filing has talked frankly about the subject, and the statute leaves that discussion alone. A professional who tells the debtor to take on more debt for that reason has given the advice the statute reaches.9 Milavetz construed a statute and did not apply Rule 1.2(d), so it is not a holding about that rule. Its value here lies in the Court’s choice of the rule as its comparison, since frank discussion stays open and affirmative advice to take the forbidden step does not.
Students tend to see a client with a suspect plan and conclude that the lawyer’s explanation of the plan is itself assistance. The safe harbor protects the explanation, including an unwelcome forecast. It stops protecting the lawyer when the words change from describing consequences to urging the wrongful step, a boundary the last subsection takes up.
Testing the Law in Good Faith
The second safe harbor goes beyond talking. The rule adds that a lawyer “may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”11 The first harbor lets the lawyer describe what the law will do to a client who acts, and this one lets the lawyer help the client act in order to learn what the law is. The four objects of the inquiry cover the ways a legal rule can be uncertain: whether it is valid, how far it reaches, what its words require, and how it applies to these facts. The familiar illustration is the test case. A client who believes a statute is invalid acts in a way the statute forbids, so as to create a controversy a court can decide, and the lawyer advises the client about the plan and represents the client in the resulting dispute.
The clause matters because many legal questions can be answered only by a ruling, a ruling requires a dispute, and a dispute requires someone who has acted. If lawyers could not assist such clients, the people with the most considered doubts about a law would have to act alone or not at all. The client’s purpose in a test case is to put a question to a tribunal that can answer it, which differs from collecting a benefit the law withholds, and the lawyer’s contribution is to see that the question is put properly.
The example works because the application puts the disqualifying fact in front of the decision maker and invites a ruling. Each step the lawyer takes moves the question toward a tribunal. The lawyer also did not need certainty that the statute is invalid, since an effort to determine validity presupposes that the answer is still open. If the law were plain and settled, nothing would remain to determine, and “test case” would describe only a plan to break it.
The two scenes differ in one fact, which is whether the application tells the truth. That fact decides whether the lawyer is helping present a legal question or helping the client avoid the question altogether.
The same demand for openness appears where the lawyer, and not a client, doubts that an obligation imposed by a tribunal is valid. The rule that excepts an “open refusal” from the ban on disobedience protects a lawyer only if the lawyer acts with candor and clarity, challenging the obligation while declining to comply with it. As the Utah Supreme Court put it, “an attorney must either obey a court order or alert the court that he or she intends to not comply with the order.”12 That rule belongs to the lawyer’s duties toward tribunals, and its detail is taught there. It appears here because it applies the same logic.
A lawyer who violates such an obligation surreptitiously forfeits the protection, because the attempt to conceal the behavior undermines any claim of good faith and weakens the credibility of the later challenge.13 Timing and alternatives limit the exception further. A lawyer charged with disobedience cannot invoke it belatedly, because the rule demands open refusal from the outset. And where readily available means exist to test the obligation, such as asking the judge to reconsider or appealing to a reviewing court, immediate disobedience is unnecessary and therefore not in good faith.14 By analogy, a lawyer who encourages a client’s violation when an ordinary route to a ruling is open weakens the claim that the violation was needed to learn what the law means.
The clause also supports candor when the law is genuinely unsettled. When the contours of the law are unclear, or the law appears to force a client into a difficult choice among options none of which may be plainly lawful, the client is entitled to the candid provision of information by the lawyer.15 Silence leaves the client to choose blind, and a description of only the comfortable options leaves the client with a false picture.
The privilege follows the same logic. A client who seeks advice on the legality of a proposed course, even one the lawyer then determines would be criminal or fraudulent, is using the legal services the privilege exists to encourage. That use differs from deliberate misuse of legal services in furtherance of a crime or fraud, and only the misuse vitiates the privilege. The crime-fraud exception, treated later in this chapter, reaches the misuse and not the request for advice.16
Examinees tend to err in one of two directions. Some see a client who plans to break a statute and conclude that any lawyer help is forbidden assistance, which overlooks that an open test case protects a real legal question. Others treat the words “test case” as a shield for conduct that conceals the violation or rests on a false statement, which overlooks that good faith depends on candor about the challenge. A sound answer asks whether the question is real, whether the challenge is open, and whether the lawyer is helping to present the question or to avoid it.
Analysis Versus Facilitation
The comment to Rule 1.2 draws the boundary in one sentence: “There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.”18 The rule forbids knowing counsel or assistance and permits discussion of consequences, and the two halves meet at this line. The task is to place a given statement on one side of it, even though both sides can involve the same client, the same plan, and the same facts.
The line holds because the two kinds of statements do opposite things to the client’s decision. An analysis tells the client what the law is and what will probably happen to someone who acts, so the client chooses with better information and the choice stays with the client. A recommendation of means tells the client how to do the thing or how to avoid being caught, and it raises the odds that the wrong succeeds by drawing on what the lawyer uniquely contributes, which is knowledge of procedure, of enforcement, and of paperwork. The comment’s reference to “impunity” names what makes such a recommendation dangerous: it helps the wrong succeed and escape its consequences.19
The evidence dilemma tests the line when every option is risky. A client holding illegal narcotics may fear that destroying them would be obstruction of justice. States vary on obstruction and evidence tampering, but the conscious contemplation of an official proceeding or investigation, and not merely a remote possibility, appears to be a nearly universal expectation before destroying what might have been evidence counts as criminal.20 Keeping the narcotics, meanwhile, continues an unlawful possession. The lawyer’s honest opinion should therefore address how foreseeable an investigation is, what sanctions would follow if destruction proved wrongful, and how those compare with the penalties for possession.21 The lawyer may give that forecast for each course the client might choose. The prudent course is to stop there, because an instruction to take one legally dubious step picks the risk to run, and that selection belongs to the client.
Both lawyers talked about discovery by the owners. The first told the client what discovery would cost, and the second told the client how to prevent it, and preventing discovery of a known wrong is what committing it with impunity means. The same information can land on either side depending on its use. A lawyer who explains that payments below a reporting threshold escape a report, and pairs that with what the law does to someone who arranges payments to exploit the gap, has explained how the law works. Once the lawyer adds that the client should split the payments that way, the statement has become a recipe.
The second step does most of the work. Examinees often classify by topic and reason that a lawyer who talks about concealment, evasion, or penalties has already crossed the line. A lawyer has to discuss exactly those subjects to warn a client away from them, and the rule protects that discussion. Protection ends where the statement turns from describing to recommending or equipping.
Immigration practice supplies a hard case in which the client’s own state of mind decides whether a filing is truthful. Under the 1990 Act, a temporary worker with an H visa or a transferee with an L visa may lawfully pursue adjustment to permanent resident status. The problem persists for other nonimmigrant statuses, such as B (temporary entry), F (academic study), and J (research scholar, professor, or exchange visitor).22 A client in one of those categories who tells the lawyer he may someday want to immigrate puts the lawyer in a delicate position, because a lawyer who tells him not to form that intent begins to look like a participant in a misstatement.
The source’s guidance turns on sequence: the key is for the lawyer to convey the legal information before the client describes his intent in detail, because a detailed account could foreclose the lawyer from assisting further.23 The sequence fits the comment’s line. A lawyer who explains the law first has described a general legal landscape, and whatever the client says afterward is the client’s own account. A lawyer who already holds a detailed account and then explains which version would qualify looks like someone selecting the version.
The worry reaches beyond immigration, because a lawyer’s explanation of the law can shape what a client later says about his own state of mind. The problem has drawn attention chiefly in defense preparation in criminal matters, where intent is often a critical fact, but it arises in contract disputes too. Whether a contract was formed often depends on choosing between conflicting accounts of a conversation, and a lawyer’s explanation of contract law might bear on the client’s recollection of it.24 Explanation that informs a client’s choice stays protected even when the client may later misuse it, but a lawyer may not knowingly assist a client in criminal or fraudulent conduct.25
The lawyer in that scene said nearly the same words about the law as the lawyer in an honest consultation would. What changed was what the lawyer knew and what the conversation was for. Explanation aimed at shaping an account the lawyer knows is untrue helps create the wrong.