Hello everyone and welcome to this Ethics Alert, which will discuss recent ABA Formal Opinion 491 (issued 4/29/20), which discusses and provides guidance regarding a lawyer’s obligation to avoid counseling or assisting in crime or fraud in non-litigation settings. The opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-491.pdf
The opinion states: “ABA Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in a transaction or other non-litigation matter the lawyer ‘knows’ is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness or conscious disregard of available facts.”
“Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish ‘knowledge’ under Rule 1.2(d), other rules may require further inquiry to help the client avoid crime or fraud, to advance the client’s legitimate interests, and to avoid professional misconduct. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4.”
“A lawyer’s reasonable evaluation after that inquiry based on information reasonably available at the time does not violate the rules. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.”
The opinion concludes that: “where there is a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer must inquire further to avoid advising or assisting such activity” and “(i)f the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16.”
Bottom line: This ABA opinion states that, in order to comply with the lawyer’s obligations under ABA Rule 1.2(d) (which is substantial similar to Florida Bar Rule 4-1.2(d), if there is “a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity”, the lawyer cannot engage in “willful blindness or conscious disregard of available facts” and the lawyer “must inquire further to avoid advising or assisting such activity.”
Stay safe and healthy and be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Palm Harbor, Florida
Office (727) 799-1688
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