ABA Formal Opinion 491 discusses a lawyer’s obligation to avoid counseling or assisting a client in a crime or fraud

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeierabout.me/corsmeierethicsblogs

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
This entry was posted in ABA opinion 491- lawyer's obligation to avoid counseling or assisting client in crime or fraud, ABA opinions, Attorney ethics, corsmeier, Ethics Opinions, joe corsmeier, joseph corsmeier, Lawyer Ethics, Lawyer ethics opinions, Uncategorized and tagged , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s