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When does a lawyer "counsel" or "assist" illegal or fraudulent conduct? Can merely providing information without suggesting a course of conduct violate the Rules? Is it a violation to know the client will act on information you have provided and fail to prevent it? To believe the client will so act? Rule 1.2(d) prohibits a lawyer from counseling a client to engage in, or assisting a client in, conduct the lawyer knows is criminal or fraudulent. The Rule does allow the lawyer to "discuss the legal consequences of any proposed course of conduct." The Commentary advises that "[t]here is a critical distinction 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." Comment, ¶ 6.
While this Rule appears clear on its face, it becomes much more complex when one begins to look at the processes of memory and recollection. In an illuminating chapter on "Counseling the Client: Refreshing Recollection or Prompting Perjury" from his controversial book, Lawyers Ethics in an Adversary System, Monroe Friedman explores the psychological literature on memory in the context of the ethical issues involved in counseling and advising clients. After describing several studies, he concludes:
[T]he process of remembering is not one dependent on ‘memory traces,’ which can be played back as if by placing a stylus into the groove of a phonograph record. Rather, the process is one of active, creative reconstruction, which begins at the moment of perception. The reconstructive process is significantly affected by the form of the questions asked and by what we understand to be in our own interest -- even though, on a conscious level, we are responding as honestly as we possibly can.
These conclusions might seem to suggest that the conscientious lawyer should avoid giving a client or other witness an understanding of what is relevant and important and should rely only upon narrative statements unassisted by questions that seek to elicit critical facts. However, anyone who has conducted interviews will immediately recognize that such a procedure would be highly impractical. An untrained and perhaps inarticulate person cannot be expected to relate all that is relevant without a substantial amount of direction. That is why one of the most important functions of the lawyer is to provide an awareness of what is legally relevant. Moreover, the same psychological authorities support the necessity of prompting in order to maximize recall. What prompting can do is to trigger recognition, which is a less complex process than remembering. . . . [I]n any experimental series, "only a relatively small portion of the material that can be recognized can, as a rule, be recalled." Another authority observes similarly that narrative is "the most accurate" but "the least complete" of all forms of recall. That is, if we rely only upon unprompted narrative, many important facts will be omitted, facts which can be accurately reported if memory is prompted by recognition, such as through leading questions. Obviously, therefore, we are faced with another dilemma. On the one hand, we know that by telling the client that a particular fact is important, and why it is important, we may induce the client to "remember" the fact even if it did not occur. On the other hand, important facts can truly be lost if we fail to provide the client with every possible aid to memory. Furthermore, since the client’s memory is inevitably going to be affected by reconstruction consistent with self-interest, a client who has a misunderstanding of his or her own legal interest could be psychologically inclined to remember in a way that is not only inconsistent with the client’s case, but also inaccurate.
The complexity of the difficulty is heightened, both on a practical and ethical level, if we reconsider at this point the attorney’s professional responsibility to "know all the facts the client knows" . . . .
How, then, does an attorney interview clients and witnesses in a way that is likely to obtain truthful, complete, necessary information while at the same time not consciously or unconsciously prompting the client or witness? What about dealing with a client or witness whose memory may have been affected by improper questioning by another? How far can/should you go in that instance? And how does this all impact on what and when the lawyer "knows" with regard to the truth?
A related problem exists where legal rights turn on a particular state of mind, but the client may not have had any thoughts at all with regard to that matter at the crucial time. An example from Friedman addresses this problem:
A young man and a young woman decide to get married. Each has $1,000. They decide to begin a business with those funds, and the young woman gives her funds to the young man for that purpose. Was the intention to form a joint venture or a partnership? Did they intend that the young man be an agent or a trustee? Was the transaction a gift or a loan? Most likely, the young couple’s state of mind did not conform to any of the modes of "intention" that the law might look for. Thus, if the couple should subsequently visit a tax attorney and discover that it is in their interest that the transaction be viewed as a gift, they might well "remember" that to have been their intention. On the other hand, should their engagement be broken and the young woman consult an attorney for the purpose of recovering her money, she might "remember," after proper counseling, that it had been her intention to make a loan.
The foregoing is not intended in a cynical way. As in many other instances, the rules of law require determinations of "fact" where the facts are truly ambiguous. Moreover, as we have seen in the normal process of remembering/reconstructing, the client’s honest recollection is inevitably going to be affected by what the client assumes to be in his or her best interest. In such an ambiguous situation, therefore, it would be absurd for the lawyer to insist that the client state the conclusion as to whether the intent had been to make a gift or a loan, without first explaining to the client what the applicable law is and what the significance would be of each of the possible responses.
Can the attorney probe for facts that the witness does not appear to remember? At what point does this lead to creating of new memory, rather than elicitation of what is really there? There is a clear line in the rules between providing information and assisting the client in fraudulent or criminal conduct. Often that line is clear in practice as well, but not always. And frequently, there are strong incentives to cross that line. Friedman ultimately concludes as follows:
In interviewing, therefore, the attorney must take into account the practical psychological realities of the situation. That means, at least at the early stages of eliciting the client’s story, that the attorney should assume a skeptical attitude, and that the attorney should give the client legal advice that might help in drawing out useful information that the client, consciously or unconsciously, might be withholding. To that extent -- but on a different and more limiting rationale, I adhere to my earlier position that there are situations in which it may be proper for the attorney to give the client legal advice even though the attorney has reason to believe that the advice may induce the client to commit perjury. There does come a point, however, where nothing short of "brute rationalization" can purport to justify a conclusion that the lawyer is seeking in good faith to elicit truth rather than actively participating in the creation of perjury.
Frequently, the lawyer who helps the client to save a losing case by contributing a crucial fact is acting from a personal sense of justice: the criminal defense lawyer who knows that prison is a horror and who believes that no human being should be subjected to such inhumanity; the negligence lawyer who resents the arbitrary rules that prevent a seriously injured and impoverished individual from recovering from an insurance company; the prosecutor who does not want to see a vicious criminal once again turned loose upon innocent citizens because of a technical defense; or the tax attorney who resents an arbitrary and unfair system that leaves Peter with his wealth while mulcting Paul. I have sometimes referred to that attitude (with some ambivalence) as the Robin Hood principle. We are our client’s "champions against a hostile world," and the desire to see justice done, despite some inconvenient fact, may be an overwhelming one. But Robin Hood, as romantic a figure as he may have been, was an outlaw. Those lawyers who choose that role, even in the occasional case under the compulsion of a strong sense of the justness of the client’s cause, must do so on their own moral responsibility and at their own risk, and without the sanction of generalized standards of professional responsibility.
What about completed fraud? What if the attorney discovers that the client has used information or advice provided to perpetrate a fraud during the course of the representation? As the previous materials note, the attorney may not disclose that fraud, but he or she may not act in a way that continues to advance it either. As the Commentary to Rule 1.2 indicates, a lawyer "may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation . . . may be required." ¶ 7. Why must the attorney disclose in the preceding situation, but not here? And why is withdrawal a satisfactory solution here, when it is rejected in the prior situation?
The rationale for the different responses stems from the different competing concerns. In the prior situation, confidentiality and loyalty were positioned against candor to the tribunal. Where these principles clash, candor to the court prevails. But in the latter situation, confidentiality and loyalty are pitted against fairness to third parties, and here fairness loses. Thus, although it is clear that the attorney cannot affirmatively participate in criminal or fraudulent conduct, no matter what other interests are at stake, where no tribunal is involved, the attorney has no obligation to rectify the consequences of a client’s fraudulent activity and cannot disclose. The attorney may disassociate him or herself from the client, and must do so if not doing so will involve the attorney in the fraud. M.R. 1.16(a)(1). Whether the attorney can withdraw "noisily" is still an open question. Is this a proper resolution of these matters? Should an attorney who wants to disclose have the discretion to do so? How might you structure a different rule?
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