3

I think it's probably obvious that a lawyer cannot tell his client where to stash the body his client just murdered.

I think it's also probably pretty obvious (but less so) that a lawyer cannot tell his client the best way to commit a murder, even though the lawyer may have nothing to do with carrying out the murder.

Tell me if I am wrong, though.

Then there's a question of, say, a lawyer telling his client where to stash his retirement account in order to avoid paying taxes on it. This one is less obvious.

Then there's a question of, say, a lawyer advising his client that the fine for breaking the law is "only" $X, so it would therefor be worth it to take the fine and commit the illegal act. To me, this one should be perfectly okay for the lawyer to do. But what if the lawyer advised his client "it's only 30 years if you want to kill your lover's mistress? It might be worth it?"

Finally, there's a special case for attorney generals, who are licensed I assume. What if an AG advises a president or a governor to do X illegal act because the only penalty is impeachment and the legislature is controlled by his own party so he can get away with it?

In sum, is there a rule of thumb or a case history which provides a guide as to the actions of attorneys? What is it?

Since the ABA governs most states, consider what they would say.

  • 1
    As worded, this question feels overly broad. Can you narrow it down and perhaps clarify for which bar association or jurisdiction you are seeking answers? – Jason Aller Oct 27 '15 at 20:59
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    This is funny: You've apparently never talked to a real lawyer. It's hard enough to get concrete advice on law. I can't imagine what it would take to get subjective advice like, "It might be worth paying the fine" out of a practicing lawyer! – feetwet Oct 28 '15 at 13:39
  • @feetwet - I know. I'm trying to understand why lawyers are that way – Mr. A Oct 28 '15 at 14:20
  • Ah ha, so maybe you want to change the title of the question to something like, "Why can't lawyers provide subjective advice to clients?" – feetwet Oct 28 '15 at 14:33
  • maybe another question will ask that – Mr. A Oct 28 '15 at 14:44
7

The American Bar Association's Model Rules of Professional Conduct (Rule 1.2 (d)) requires that:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, 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.

Any advice to any client (including the President) to violate a law is against the rules of professional conduct.

The American Bar Association and associated state bars publish ethics opinions to provide clarification. For example, the Arizona State Bar published an opinion about the effect of Rule 1.2(d) on a lawyer's ability to advise clients regarding activity that is permissible Arizona's Medical Marijuana Act, "despite the fact that such conduct potentially may violate applicable federal law".

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  • 1. Any advice that is "criminal or fraudulent"? 2. ABA Doesn't affect all 50 states, does it? What about federal courts, and thus have you considered the federal AG's office? 3. Then, who decides what conduct is "criminal or fraudulent" when there may not even be a precedent in the courts which shows that the conduct is either legal or illegal? – Mr. A Oct 28 '15 at 12:18
  • Each state has its own bar, all of which have incorporated some variant of this rule. If a question is not clearly decided, all bars allow for the lawyer to use their professional judgement when trying to determine what the law is when advising the client and to proceed with an appropriate route for challenging the law if they believe the law is improper. – user248 Oct 28 '15 at 13:32
  • @nomenagentis This is exactly right. All of these scenarios are ethical violations and no reputable attorney would engage in that type of behavior. Attorneys are officers of the court and to advise any client regarding how to, or whether it's worth while to commit a crime based on the weight of the punishment is not something most lawyers are going to risk their license to practice over. – gracey209 Oct 28 '15 at 23:04

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