Client transgressions: What to do when a client plans to commit a crime

Lawyers often counsel clients on how to stay on the right side of the law. But there can be risks for lawyers, clients, and the pubic when a client informs their lawyer that they are considering conduct that could amount to a crime.

Sometimes this issue arises in less obvious ways. For example, a long-time client trying to assist a parent’s medical care and expenses might ask for guidance on how to circumvent required filings or forge an ill parent’s signature. Even in situations that appear to have good intentions, where clients seek advice or propose a course of conduct that could run afoul of the law, attorneys may feel a tension between helping their client and upholding the law. Here are some tips to consider when asked for advice regarding a client or prospective client’s potentially problematic conduct.

Know the risks

It is well-accepted that attorneys act as counselors for their clients while maintaining some moral responsibility to serve the public and preserve the integrity of the profession. The Rules contemplate that a client may ask a lawyer for guidance on a particular course of conduct. A lawyer may guide a client on the application of the law (even where it is not clear), but may not facilitate or support a crime. Comment 1 to California’s Rules of Professional Conduct Rule 1.2.1 states that, “[t]here is a critical distinction under this rule between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Rule 1.2.1(b) further distinguishes between attorneys who counsel and assist clients to make an effort to discern the application of law, which is permitted, and attorneys who counsel a client to engage in a crime, fraud, or violation of law, which is prohibited.

Lawyers are not permitted to “counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.” Ca. R. Prof. C. 1.2.1(a). Notwithstanding Rule 1.2.1(a), however, attorneys may, when presented with their client’s proposed illegal conduct, discuss the legal consequences of that potential conduct with their client. Id. at 1.2.1(b)(1). In addition, attorneys may assist the client in making their own good faith effort to determine the application or validity of the law at issue. Id. at 1.2.1(b)(2). This advice can include an analysis of the risks of potentially violating the law and any punishments that could attach. Id. at Comment [4].

Thus, lawyers do not have to altogether avoid these kinds of conversations, but may try to help the client understand the consequences of that conduct.

Maintain attorney-client privilege

The attorney-client privilege does not vanish simply because a client seeks advice on an illegal course of conduct. Indeed, the protections inherently created by the attorney-client and confidentiality privileges are what encourage clients to tell their lawyer the truth about a potential or continuing crime or other transgression. Notably, the rules of professional conduct in a majority of U.S. jurisdictions emphasize the importance of maintaining confidentiality, even when the attorney has knowledge of potentially illegal conduct by a client.

In particular, the rules provide that even when the attorney is aware that a client is about to commit a serious crime, lawyers are not required to disclose that confidential information. It is instead left to the attorney’s discretion. California Rules of Professional Conduct Rule 1.6 provides a lawyer may, but is not required to, reveal confidential information to the extent the lawyer reasonably believes it is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm. See Ca. R. Prof. C. Rule 1.6(b).

Therefore, lawyers may actually face risk from the bar if they disclose confidential information about a client’s potential criminal act where such acts are not likely to result in death or substantial bodily harm. The Rule’s commentary illustrates that disclosure is “ordinarily a last result” and that the lawyer must first make a good faith effort to dissuade the client from the illegal act before resorting to disclosure. See Ca. R. Prof. C. 1.6, Comment [6].

On the other hand, if the lawyer becomes a supporter, facilitator, or participant in criminal acts with a client, the privilege may be deemed pierced by the crime-fraud exception to the attorney-client privilege (not to mention any other criminal penalties that the attorney could face for facilitating or assisting a client’s crime or fraud).

Consider whether to consult an attorney

Although lawyers are prohibited from assisting a client’s illegal conduct, lawyers are not precluded from providing advice regarding the legal or illegal consequences of a client’s proposed conduct. See id. at 1.2.1(b)(1)-(2). For that reason, the fact that a client nonetheless decides on their own to pursue on a course of action that is criminal or fraudulent does not automatically make the attorney a party to that course of action, just because the attorney provided analysis of potentially applicable law. See id., Comment [1].

However, these issues can involve a number of complicating factors. Attorneys faced with a client who is considering criminal acts, notwithstanding the attorney’s advice to the contrary, may consider seeking the advice of their firm’s in-house or outside counsel specializing in liability issues. Seeking legal advice from other counsel on the ramifications of a client wanting to break the law can help attorneys understand their obligations to their client. Second opinions can sometimes clarify how to best navigate the dark waters.

Even if their clients choose transgression over their attorneys’ advice, keeping these tips in mind may help attorneys determine how to best toe the line of ethical obligations and avoid potential pitfalls when confronted with a scenario in which a client proposes illegal conduct.