## **Learning Outcomes**

After reading this article, you will be able to identify the ethical boundaries for lawyers when advising or assisting clients, including the prohibition on counseling or aiding unlawful conduct, the distinction between permissible legal advice and impermissible assistance, and the requirements for withdrawal when a client insists on criminal or fraudulent acts. You will also be able to apply these principles to MPRE-style questions.

## **MPRE Syllabus**

For the MPRE, you are required to understand the ethical limits on a lawyer’s authority and assistance to clients. This includes the rules governing advice about criminal or fraudulent conduct, the difference between discussing legal consequences and assisting in unlawful acts, and the lawyer’s obligations when a client persists in improper conduct. You should be prepared to:

- Identify when a lawyer may discuss the legal consequences of proposed conduct versus when assistance is prohibited.
- Distinguish between giving candid legal advice and counseling or assisting in criminal or fraudulent acts.
- Recognize the lawyer’s duty to withdraw if continued representation would result in a violation of law or ethics rules.
- Apply the rules regarding remedial action when a lawyer’s services have been used to further a client’s crime or fraud.
- Understand the limits of client authority and the lawyer’s independent professional judgment.

## **Test Your Knowledge**

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision._

1. A client asks a lawyer how to avoid detection when breaking a law. The lawyer provides detailed instructions. Is the lawyer subject to discipline?
   a) Yes, because the lawyer assisted in criminal conduct.
   b) No, because the client requested the information.
   c) No, if the lawyer did not participate in the act.
   d) Yes, only if the client is prosecuted.

2. Which of the following is permitted under the Model Rules?
   a) Advising a client on how to commit fraud undetected.
   b) Explaining the legal risks of a proposed course of action.
   c) Assisting a client in destroying evidence.
   d) Drafting documents to further a client’s ongoing crime.

3. If a client insists on using the lawyer’s services to commit a crime, what must the lawyer do?
   a) Continue representation to protect the client’s interests.
   b) Withdraw from representation.
   c) Report the client to authorities in all cases.
   d) Ignore the client’s conduct.

4. A lawyer learns that her advice was used to further a client’s fraud. What is her obligation?
   a) Take remedial action, including withdrawal if necessary.
   b) Do nothing if the fraud is complete.
   c) Disclose all client confidences immediately.
   d) Continue representing the client as usual.

## **Introduction**

Lawyers are expected to provide candid advice and effective assistance to clients, but this authority is not unlimited. The Model Rules of Professional Conduct prohibit lawyers from counseling or assisting clients in conduct the lawyer knows is criminal or fraudulent. However, lawyers may discuss the legal consequences of proposed actions and help clients understand their legal risks. When a client seeks to use a lawyer’s services for improper purposes, the lawyer’s obligations shift, and withdrawal or remedial action may be required.

> **Key Term: Counsel Within the Bounds of the Law**
> The ethical principle that a lawyer may not advise or assist a client in conduct the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of proposed actions.

### Authority to Advise Clients

Lawyers are permitted—and expected—to give clients candid advice about the law, including the risks and consequences of proposed conduct. This includes discussing whether an action would violate the law, the likelihood of detection, and possible penalties. The lawyer may also advise on the validity, scope, and application of the law.

> **Key Term: Candid Advice**
> Honest legal advice that may include moral, economic, or social considerations, as well as legal analysis, to help the client make informed decisions.

### Prohibition on Counseling or Assisting Unlawful Conduct

A lawyer must not counsel a client to engage in, or assist a client in, conduct the lawyer knows is criminal or fraudulent. This includes providing detailed instructions on how to break the law, drafting documents to further a crime, or helping conceal wrongdoing. The prohibition applies even if the client requests the assistance or insists on proceeding.

> **Key Term: Assisting Unlawful Conduct**
> Any act by a lawyer that helps a client commit or conceal a crime or fraud, including drafting documents, giving step-by-step instructions, or enabling illegal acts.

### Permissible Discussion of Legal Consequences

Lawyers may explain the legal consequences of any proposed course of conduct and may help clients make a good faith effort to determine the validity, scope, meaning, or application of the law. The line is crossed when the lawyer’s advice or actions go beyond explanation and become active assistance in criminal or fraudulent conduct.

### Duty to Withdraw

If a client insists on using the lawyer’s services to commit a crime or fraud, or if continued representation would result in a violation of law or the rules of professional conduct, the lawyer must withdraw from the representation. If the lawyer’s services have already been used to further a crime or fraud, the lawyer may need to take additional remedial steps, such as giving notice of withdrawal or disaffirming any prior statements or documents.

> **Key Term: Mandatory Withdrawal**
> The requirement that a lawyer must withdraw from representing a client if continued representation would result in a violation of law or ethics rules, or if the lawyer’s services are being used to further a crime or fraud.

### Remedial Action After Use of Lawyer’s Services for Crime or Fraud

When a lawyer discovers that her services have been used to further a client’s crime or fraud, she must take reasonable remedial measures. This may include giving notice of withdrawal, disaffirming prior work, or, in some cases, making disclosures as permitted by the rules on confidentiality.

### **Worked Example 1.1**

A client tells his lawyer that he plans to underreport income on his tax return and asks the lawyer to prepare the return. The lawyer explains the legal risks but refuses to prepare the false return. The client insists and offers a higher fee.

**Question:** What must the lawyer do?

> **Answer:** The lawyer must refuse to prepare the false return and, if the client insists on using the lawyer’s services for fraud, must withdraw from representation. The lawyer may explain the legal risks but cannot assist in the unlawful act.

### **Worked Example 1.2**

A business client asks a lawyer how to structure a transaction to avoid detection of illegal kickbacks. The lawyer provides a detailed plan for concealing the payments.

**Question:** Is the lawyer subject to discipline?

> **Answer:** Yes. By providing a plan to conceal illegal conduct, the lawyer has assisted in criminal or fraudulent activity and is subject to discipline.

### **Worked Example 1.3**

A client asks a lawyer whether a proposed business practice is legal. The lawyer researches the issue and advises the client that the practice is likely unlawful, explaining the potential penalties.

**Question:** Is the lawyer’s conduct proper?

> **Answer:** Yes. The lawyer is permitted to explain the legal consequences of proposed conduct and advise the client to avoid unlawful action.

### **Exam Warning**

> Lawyers may not avoid discipline by claiming the client insisted on improper conduct. Client instructions do not excuse a lawyer’s duty to comply with the law and ethical rules.

### **Revision Tip**

> When in doubt, remember: explaining the law is permitted; assisting in breaking the law is not. If a client insists on using your services for crime or fraud, withdrawal is mandatory.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- Lawyers may not counsel or assist clients in criminal or fraudulent conduct.
- Candid legal advice about risks and consequences is permitted.
- Explaining legal consequences is allowed; active assistance in unlawful acts is prohibited.
- If a client insists on using the lawyer’s services for crime or fraud, the lawyer must withdraw.
- Remedial action is required if the lawyer’s services have been used to further a crime or fraud.
- Client instructions do not excuse a lawyer’s ethical obligations.

## **Key Terms and Concepts**

- Counsel Within the Bounds of the Law
- Candid Advice
- Assisting Unlawful Conduct
- Mandatory Withdrawal

Authority and lawful assistance - Counsel and assistance within the bounds of the law