December 2012 Bar Bulletin
Responding to Requests to Engage in Unethical Conduct
By Karen Sutherland and Karen A. Pool Norby
Sometimes clients ask lawyers to engage in conduct that is either illegal or unethical. The following are examples of situations where such requests could occur:
- The lawyer learns that documents produced in discovery that appeared to be contemporaneous to the events they depicted were created by the client during the lawsuit.
- Information sought by opposing counsel in discovery comes to light days before trial and the client does not want to disclose it.
- In preparing an analysis of the client's damages, the lawyer learns that the client has been keeping two sets of books.
- The client sends the lawyer $20,000 to deposit in the lawyer's trust account even though the lawyer is not currently performing any work for the client, so that the client can list fewer assets on a student loan application.
- The client asks the lawyer to backdate a fee agreement to cover communications that occurred prior to the formation of an attorney-client relationship.
- The client asks the lawyer for inside information about another client that is a publicly traded company.
- The client asks the lawyer for inside information about a competitor that is a client of the lawyer.
RPC 1.4(a)(5) requires lawyers to "consult with the 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 or other law."
The line between ethical advocacy and conduct that is not acceptable under the Rules of Professional Conduct is addressed in RPC 1.2(d): "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."
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