Advising Versus Assisting Wrongdoing

Advising Versus Assisting Wrongdoing

Rule 2.1 asks a lawyer for candid advice and lets the lawyer reach past the law to moral, economic, social, and political considerations.¹ Candor has to survive a bad plan. A client weighing a risky course often needs to hear what the law forbids, what penalty would follow, and how the options compare, and a lawyer who could discuss only lawful plans could offer none of that. The client would learn the consequences after acting, when nothing could be changed.

The earlier sections of this chapter asked how good advice must be, how far it may range, and when a lawyer must offer it unasked. This section asks where the advisor's role ends, and the answer turns on two acts that look alike from outside. In one, the lawyer analyzes a proposed course of conduct, including the fact that it is illegal and what would follow. In the other, the lawyer counsels the client to commit a crime or fraud, or helps carry it out. The first informs the client's choice. The second makes the lawyer a participant.

The line falls there because each side of it protects something different. A client who learns what the law forbids and what it would cost is likelier to choose a lawful path than one left to guess, so free discussion serves the client and the legal system together. The ban on assistance keeps a lawyer's skill from becoming a tool of the offense. It also preserves the independence studied at the start of this chapter, since a lawyer who helps execute a fraud has stopped offering separate judgment. The first subsection below covers what a lawyer may do when a client's proposal raises a legal problem. The second covers the point at which advice becomes counseling or assisting crime or fraud.

Discussing Consequences Is Permitted

Rule 1.2(d) protects candor at the moment candor is hardest. The same sentence that forbids a lawyer to "counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent" goes on to say that "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 prohibition and the permission sit side by side. This subsection is about the permission.

The permission does three jobs. It lets the client learn what the law says about a contemplated step, so the client does not have to guess, and guesses about legal consequences tend to lean toward the client's hopes. It lets the lawyer talk a client out of an unlawful plan, which is one of the main ways the profession keeps clients within the law. And it lets the lawyer help the client test a law the client believes invalid, which cannot happen without a lawyer's help.

The Supreme Court construed a federal restriction on advice in Milavetz, Gallop & Milavetz, P.A. v. United States, and the way it read the restriction is the lesson.³ Section 526(a)(4) of the Bankruptcy Code concerns what professionals may tell an assisted person about taking on more debt. The Court read it to require professionals only to avoid instructing or encouraging assisted persons to take on more debt, and it described the prohibition as one that narrowly bars an attorney from "affirmatively advising" a client to engage in abusive prefiling conduct.⁴ It also set Rule 1.2(d) beside the statute as a comparison, a professional-conduct rule that likewise forbids counseling wrongdoing while allowing a lawyer to discuss the legal consequences of a proposed course.⁵

On that reading, explaining what more debt would mean for a debtor stays on the permitted side, and urging the debtor to take it on because a filing is coming falls on the other. The Court limited the provision to advice principally motivated by the prospect of bankruptcy, and it said this limit further ensures that professionals cannot unknowingly run afoul of the prohibition.⁶ Milavetz is a statutory case, so it does not itself define what Rule 1.2(d) requires. It illustrates the point that a restriction aimed at affirmative advice leaves honest discussion alone, which is also how Rule 1.2(d) is written, since it permits a lawyer to discuss the legal consequences of any proposed course of conduct.

Consider a client who tells his lawyer that he keeps illegal narcotics at home and asks what to do. Every choice looks bad. If he destroys the items, he may be committing obstruction of justice, and if he keeps them, he continues an unlawful possession. Whether destruction is a crime depends on the state, although nearly all states expect conscious contemplation of an official proceeding or investigation, and not merely a remote possibility of one, before destroying what might have been evidence counts as criminal.⁷ Rule 1.2(d) lets the lawyer discuss the legal consequences of each course the client might take.⁸ The lawyer can say whether destruction would solve anything on these facts, what sanctions would follow if destruction proved wrongful, and how those sanctions compare with the penalties for possession. The lawyer should not push the client toward any one step when every option is legally dubious, and must not show the client how to destroy the items undetected, because that would be counseling or assisting conduct the lawyer may know to be wrongful. Silence would serve the client worse, since the client will choose anyway, with less information.

The working distinction, then, separates analyzing the legal side of questionable conduct from recommending the means of carrying it out. A lawyer who lays out the risks of destruction is analyzing. A lawyer who tells the client how to destroy the items so no one will notice has crossed to the other side, the subject of the next subsection.

The good-faith clause separates the two applicants. Rule 1.2(d) protects a lawyer who helps a client make a good faith effort to determine the validity, scope, meaning, or application of the law, and it gives no cover to a lawyer who helps the client avoid the law by concealment.⁹ Students tend to err in opposite directions here. One reads the prohibition as barring any conversation about unlawful conduct, which would make candor unavailable exactly when a client needs it most. The other treats the label "just explaining the law" as a shield for words that, in substance, tell the client how to carry out the offense unseen.

Counseling Crime or Fraud Is Forbidden

Rule 1.2(d) marks where the lawyer's freedom ends: a lawyer shall not "counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent."¹¹ The sentence names two acts. To counsel is to advise or urge the client toward the conduct, and to assist is to help carry it out, so the rule forbids both the encouragement and the labor. The reason lies in what a lawyer's service is for. A client hires a lawyer to pursue objectives through the legal system, and a lawyer who helps accomplish a crime or fraud has joined the offense. The prohibition also fits the independence studied at the start of this chapter, because advice designed to help a client evade the law is not the independent professional judgment that Rule 2.1 requires.¹² The trigger is knowledge, so the rule bites on conduct the lawyer knows to be criminal or fraudulent and leaves room for the good-faith testing of unsettled law described above.

The Supreme Court stated the principle behind the rule in Nix v. Whiteside, a case in which a lawyer urged his criminal-defendant client to testify truthfully.¹³ The case was decided on grounds that lie outside this chapter, and what matters here is the Court's account of loyalty. The duty of loyalty, the Court said, is limited to legitimate, lawful conduct compatible with a trial's nature as a search for truth. Counsel must take all reasonable lawful means to attain the client's objectives, and counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.¹⁴ Both halves of that statement do work. The first keeps a lawyer from refusing a lawful tactic, and the second keeps a client's objective from drawing the lawyer into the offense.

The limit is old. The Court observed that expositors of the norms of professional conduct have recognized the principle in most unequivocal terms since the American Bar Association adopted the first Canons of Professional Ethics in 1908, and Rule 1.2(d) carries the same command into the current Model Rules.¹⁵ The current codes go further: both the Model Code and the Model Rules require, and do not merely authorize, disclosure of client perjury, a subject that belongs with the lawyer's duties to the tribunal.¹⁶ The advisor's own response to a planned perjury is to urge the client to testify truthfully, and the Court found no support for the view that counsel's efforts to persuade the client to do so amounted to a threat to testify against his own client.¹⁷

Silence does not solve the problem either. One approach would have had counsel stand mute while the defendant told his false story in narrative form, in his own words and without direct examination. That conduct was thought to signal at least to the presiding judge that the lawyer considered the testimony false and wished to disassociate himself, and counsel would also have been barred from discussing the known false testimony in closing argument. The Rule finally promulgated in the Model Rules rejects any participation or passive role whatever by counsel in allowing perjury to be presented without challenge.¹⁸ The ban on assisting explains why. A lawyer who lets the testimony go forward, even without asking a single question, gives the falsehood its occasion and its standing before the factfinder, and the lawyer's private disapproval keeps none of it out.

The two lawyers differ only in what each knows about the testimony. The limit is lawfulness, so doubts about how persuasive a client's position is give no ground for refusing to press it. A lawyer who dropped a lawful but weak defense would break the first half of the Court's statement as surely as one who built a false defense would break the second.

A narrower prohibition of the same kind appears in the bankruptcy statute construed in Milavetz, Gallop & Milavetz, P.A. v. United States. Section 526(a)(4) bars professionals from advising an assisted person to take on more debt, and the Court construed it to reach only advice principally motivated by the prospect of bankruptcy.¹⁹ The statute differs from Rule 1.2(d) in what triggers it, because it turns on the reason for the advice and does not ask whether the lawyer knows the conduct is criminal or fraudulent. It targets the same kind of act, though, which is affirmative advice to take an abusive step. The Court's reasoning shows why the line falls there. The Code makes an attorney's signature on a bankruptcy filing a certification that the attorney has determined the filing does not constitute an abuse under § 707(b)(1), so attorneys already must know what abuse looks like. Against that backdrop, the Court found it hard to see how a rule that narrowly prohibits an attorney from affirmatively advising a client to commit abusive prefiling conduct could chill attorney speech or inhibit the attorney-client relationship.²⁰

The statute as the Court read it requires professionals only to avoid instructing or encouraging a debtor to take on more debt, so discussion of the subject stays open.²¹ Milavetz construed a bankruptcy statute and mentioned Rule 1.2(d) only as a comparison, so an answer that treats the decision as the source of the professional-conduct rule has the authorities backwards. Read together, the two decisions put the line in the same place. In Nix, the client's objective, perjury, was unlawful, so the lawyer could urge truthful testimony and refuse to help. In Milavetz, the advice itself, to take on debt because bankruptcy was coming, was the forbidden act, so the lawyer could discuss the debt and could not urge it. In both settings the lawyer may explain the law and its consequences, and the lawyer may never push the client toward a wrongful end or help the client reach it.