Rule 1.2(d) of the Vermont Rules of Professional Conduct states:
- “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.”
Vermont’s 1.2(d) mirrors ABA Model Rule 1.2(d). Yesterday, and as reported by the ABA Journal, the ABA’s Standing Committee on Ethics and Professional Responsibility (the Committee) issued Formal Opinion 491 (the Opinion). The opinion provides guidance on complying with Rule 1.2(d).
At first glance, one might conclude that the opinion is of little value here. After all, the introduction’s opening sentence refers to “international counter-terrorism enforcement and efforts to combat money-laundering,” phrases more likely to evoke the plotlines of the pandemic’s most-streamed shows than images of a Vermont practitioner. Still, over the years, I’ve had a decent number of inquiries on the rule. Further, to the extent it interprets the rule, the opinion provides valuable guidance to any lawyer whose client might break bad. So, I thought I’d call your attention to the opinion. After all, Vermont has chemistry teachers too.
Here’s a very brief outline. Essentially, the nutshell’s nutshell. This post is not a substitute for reading the full opinion. But likely more fun.
First, it’s okay to believe that your client’s goals, objectives, and transactions are legit. Still, the law is clear: there will be situations in which Rule 1.2(d) requires a lawyer to inquire further. That is, while the rule prohibits a lawyer from assisting a client in conduct that the lawyer “knows is criminal or fraudulent,” don’t hang your hat on “but I didn’t know for sure!”
(we should allow pictures in legal briefs. maybe we do. if not, we should.)
Anyhow, as the opinion indicates, facts known to the lawyer might be “so strong” as to require the lawyer to stop, consult with the client about the lawyer’s professional duties, and inquire further.
For one, Rule 1.4(a)(5) requires a lawyer “to consult with a client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct.” For another, Rule 1.16(a)(1) requires withdrawal when continued representation will result in a violation of the rules.
Further, the opinion reminds us that “if facts before the lawyer indicate a high probability that the client seeks to use the lawyer’s services for criminal or fraudulent activity, a lawyer’s conscious, deliberate failure to inquire amounts to knowing assistance of criminal or fraudulent conduct.”
For more, check out the opinion or get in touch. Those of you who represent organizational clients, there are good tips on Page 8 as to your duties when you know that an officer, employee or someone associated with the organization acts, intends to act, or refuses to act in such a way as to violate the law.
Oh, and I’d be remiss not to ask a question that I’ve used at several pub quizzes:
- Rule 1.2(d) prohibits a lawyer from assisting a client to engage in conduct that the lawyer knows is criminal. The rule is particularly relevant to Vermont lawyers who advise clients on issues related to a particular industry/product. What industry/product?
Hint: Rule 1.2(d) draws no distinction between state and federal crimes, and no distinction between crimes that are enforced more vigorously than others.
Answer: the cannabis/marijuana industry.
Schedule I of the Controlled Substances Act continues to make marijuana illegal under federal law. However, in 2016, the Vermont Supreme Court approved a proposal to add Comment  to Rule 1.2(d). The “new” comment authorizes a lawyer to advise and assist a client on matters that the lawyer reasonably believes are permitted under Vermont’s marijuana statutes, rules, and regulations. Of course, the lawyer must also advise the client of the potential consequences of the client’s actions under federal law.
In the end, the ABA Opinion includes an important reminder.
- “A lawyer’s reasonable judgment under the circumstances presented, especially the information known and reasonably available to the lawyer at the time, does not violate the rules. Nor should a lawyer be subject to discipline because a course of action, objectively reasonable at the time chosen, turned out to wrong with hindsight.”
Finally, I don’t know what the rules are in New Mexico. So, I’m not sure whether this qualifies as reasonable judgment under the circumstances: