Concept
Client Crime or Fraud
Permissive withdrawal: when the lawyer may withdraw
Client Crime or Fraud
Two grounds in Rule 1.16(b) answer a client who turns the lawyer’s own services toward crime or fraud, and they face opposite directions in time. Paragraph (b)(2) looks forward: a lawyer may withdraw when the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.1 Paragraph (b)(3) looks back: a lawyer may withdraw when the client has used the lawyer’s services to perpetrate a crime or fraud.2 The first reaches wrongdoing still under way, and the second reaches a misuse already complete. Both are alternatives under a lead-in that begins “[e]xcept as stated in paragraph (c),” so a tribunal’s order to continue can override either.3
Neither text conditions withdrawal on the absence of material adverse effect on the client, which sets these grounds apart from the harm-free ground that precedes them. Both also sit beneath the mandatory rule in paragraph (a)(1), taken up below. The forward-looking ground has the more demanding elements, so it comes first.
Persisting in Wrongful Conduct
Rule 1.16(b)(2) lets a lawyer withdraw when “the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.”4 Three conditions sit in that sentence. The client must persist, the course must involve the lawyer’s services, and the lawyer must reasonably believe the course is criminal or fraudulent. Together they ask more than a first suggestion and less than certainty. The ground reaches a client who will not be talked out of a doubtful course, and it lets the lawyer act before anyone has proved the wrong.
Persistence presupposes an earlier moment in which the client proposed the course and the lawyer responded. A first suggestion shows what the client is considering and says little about what the client will do, and a lawyer’s explanation of the consequences often ends the matter without costing the client a lawyer. The ground comes into play when the client holds to the course after that advice.
Nix v. Whiteside supplies the paradigm. A criminal defendant told his lawyer that he would perjure himself on the stand, and the Supreme Court asked whether the lawyer’s response fell within the wide range of professional responses to threatened client perjury that the Sixth Amendment accepts.5 The constitutional holding lies beyond this chapter, but the Court’s account of professional norms bears on the ground. It summarized the American Bar Association’s amicus position as one long accepted by ethical lawyers: under no circumstance may a lawyer either advocate or passively tolerate a client’s giving false testimony.6 It also described it as universally agreed that, at a minimum, the lawyer’s first duty on facing a proposal for perjured testimony is to try to dissuade the client, and it treated withdrawal as an accepted response when a client threatens perjury.7 The two responses come in order. The advice gives the client a chance to abandon the plan, and a client who holds to it after hearing that advice has shown the commitment that makes departure reasonable. The Court added that withdrawal at trial raises difficult questions, including possible mistrial and double jeopardy claims,8 a difficulty that previews the tribunal-permission problem taken up later in this chapter.
Reasonable belief sets a lower bar than knowledge, and the lower bar has a purpose. A rule that waited for certainty would tie the lawyer to a suspected wrong until it was confirmed. The belief must still rest on facts the lawyer has seen or been told, because an unsupported suspicion is not a reasonable belief. Nor must the lawyer’s services be furthering the wrong: the comment justifies the ground on the footing that a lawyer is not required to be associated with such conduct even if the lawyer does not further it.9 Protection against association explains why belief short of knowledge suffices.
Because association is the harm, the course must involve the lawyer’s own services. A client’s wrongdoing in some unrelated sphere does not draw the lawyer’s work into it. The pairs of facts below show how persistence and involvement each move the answer.
Paragraph (b)(2) marks where the lawyer is free to go, and paragraph (a)(1) marks where the lawyer must. Rule 1.16(a) requires withdrawal when the representation will result in a violation of the rules of professional conduct or other law.10 The rule quoted in Nix provides that a lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent.11 The commentary draws the consequence. When the lawyer’s services will be used in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw under Rule 1.16(a)(1), and a lawyer who first supposed the client’s conduct was proper but later discovers it is criminal or fraudulent may not go on assisting it, so that withdrawal may be required.12 The line between the two paragraphs therefore turns on what the lawyer knows and on whether the lawyer’s own work will advance the wrong. A lawyer with a reasonable but unconfirmed belief, or whose services will not materially further the course, has the option paragraph (b)(2) describes. A lawyer who knows, and whose work will help, has no option.
Withdrawing on this ground does not release the lawyer from the duty of confidentiality. After withdrawal the lawyer must refrain from disclosing the client’s confidences except as Rule 1.6 permits.13 The same passage preserves the lawyer’s ability to give notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, or affirmation.14 The noisy-withdrawal discussion below returns to that point.
State versions differ on this very ground, so the text of the governing jurisdiction’s rule controls. In In re Enron Corp. Securities, Derivative & ERISA Litigation, the court described a Texas rule requiring withdrawal when the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes “may be criminal or fraudulent,” and it noted that the lawyer’s first obligation is to try to dissuade the client from continuing in such conduct.15 The Model Rule version taught here makes the exit optional and routes the mandatory version through paragraph (a). Texas, as the court quotes it, makes withdrawal mandatory directly. Florida keeps the permissive structure. An opinion there describes Rule 4-1.16 as permitting the lawyer to withdraw if the client persists in a course the lawyer reasonably believes is criminal or fraudulent, while still obliging the lawyer to continue if a tribunal so orders.16
The fifth step is easy to skip. A student who finds persistence and reasonable belief and stops at “the lawyer may withdraw” has misdescribed a lawyer who knows that the next document drafted will advance the fraud, because for that lawyer withdrawal is a duty.
Past Misuse of Services
Rule 1.16(b)(3) permits a lawyer to withdraw when “the client has used the lawyer’s services to perpetrate a crime or fraud.”18 Where paragraph (b)(2) addresses a course still under way, this ground addresses one that has finished: the client has already turned the lawyer’s work into an instrument of crime or fraud. The verb tense carries the doctrine. “Has used” describes an event that has happened, so the lawyer need not wait for the client to persist or forecast where the client is heading. The text also omits the words “reasonably believes” that appear in (b)(2), so the ground rests on what the client actually did with the lawyer’s services. A lawyer holding only a suspicion, with no completed use to point to, should look to another ground.
This ground carries no condition about the client’s welfare. The comment permits withdrawal where the lawyer’s services were misused in the past, even if withdrawal would materially prejudice the client.19 The permission to withdraw or disaffirm any opinion, document, or affirmation shows what is at stake.20 Once the lawyer learns that earlier work was put to a wrongful use, staying in the matter suggests that the lawyer still stands behind it, and the lawyer has a legitimate interest in separating from the conduct. That interest is no weaker because leaving will inconvenience the client. A harm limit would also trap the lawyer: the more deeply the client had entangled the lawyer’s work in the wrong, the more damaging withdrawal would be, and the wrongdoing that justified leaving would become the reason the lawyer could not.
The limiting words are the lawyer’s services. A lawyer who learns that a client committed some wrong in the past has not thereby acquired a ground under (b)(3), because the trigger is a completed misuse of the lawyer’s own work and nothing broader. The line matters because much of law practice consists of representing people who have already done something wrong, and a rule that allowed withdrawal on learning of any past misconduct would reach most defense clients.
The facts change the result when the lawyer’s own work carried the wrong.
The two scenes differ on one fact: whether the lawyer’s work was the instrument of the wrong. In the first, the fraud was complete before the lawyer arrived. In the second, the fraud ran through the lawyer’s own letters, which is why the lawyer has a stake in separating from it.
Paragraphs (b)(2) and (b)(3) can overlap. A client who has already misused the lawyer’s services and insists on continuing satisfies both, and the lawyer may rely on whichever fits, since the grounds are alternatives. Their elements still differ. The persistence ground looks forward and rests on the lawyer’s reasonable belief about a continuing course of action. The completed-use ground looks back and rests on an event that has occurred. A lawyer who discovers one finished misuse and no sign that the client intends to continue has (b)(3) but not (b)(2). As with every ground in paragraph (b), the permission remains subject to a tribunal’s order to continue under paragraph (c).21
Whether and how a lawyer may disaffirm earlier work is a confidentiality question taken up in the section on noisy withdrawal. Some states attach firmer duties to a completed misuse. In In re Enron Corp. Securities, Derivative & ERISA Litigation, the court described the Texas counterpart as requiring withdrawal when the client has used the lawyer’s services to perpetrate a crime or fraud.22 It also quoted a Texas provision directing a lawyer who holds confidential information clearly establishing such a use to make reasonable efforts to persuade the client to take corrective action.23 The Model Rule ground taught here is permissive, so a court’s account of what a lawyer “must” do needs checking against the text of the governing rule before anyone applies it.