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70 Fla. L. Rev. Forum 1 (2018)

handle is hein.journals/flrf70 and id is 1 raw text is: 






    MAY LAWYERS ASSIST CLIENTS IN SOME UNLAWFUL
         CONDUCT?: A RESPONSE TO PAUL TREMBLAY

                           Bruce A. Green*

   State courts regulate U.S. lawyers by adopting rules governing
lawyers' professional conduct and      enforcing  the  rules through
disciplinary processes. Since the early 20t century, the American Bar
Association (ABA) has assisted courts in this task. Most importantly,
the ABA has drafted model rules, beginning with the 1908 Canons of
Professional Ethics,1 followed by the 1970 Model Code of Professional
Responsibility (Model Code),2 and followed in turn by the 1983 Model
Rules of Professional Conduct (Model Rules).3 Given the ABA's
influence, the care with which lawyers draft, and the ABA's access to
America's top lawyers, one would expect the ABA's models to be well
considered and carefully written. For the most part, they are.
   Paul Tremblay's article, At Your Service: Lawyer Discretion to Assist
Clients in Unlawful Conduct,4 addresses an under-explored ambiguity in
the Model Rules concerning the question of whether, and in what
circumstances, lawyers may assist clients' misconduct. The earlier Model
Code said that a lawyer must not [c]ounsel or assist [a] client in conduct
that the lawyer knows to be illegal or fraudulent.5 The Model Rules
narrowed the restriction. Model Rule 1.2(d) says that a lawyer must not
counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent.6 The change seems significant, since
various misconduct might be characterized as illegal but not criminal
or fraudulent.7
   Ethics opinions in New York, my home state, reinforce Professor
Tremblay's insight that the difference between illegal and criminal
is meaningful, and not, as some have suggested, insubstantial. Because

     * Louis Stein Chair of Law and Director of the Louis Stein Center for Law and Ethics,
Fordham Law School.
     1. CANONS OF PROF'L ETHICS (AM. BAR Ass'N 1908).
     2. MODEL CODE OF PROF'L RESPONSIBILITY (AM. BAR ASS'N 1969).
     3. MODEL RULES OF PROF'L CONDUCT (AM. BAR ASS'N 2018).
     4. Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful
Conduct, 70 FLA. L. REv. 251, 251 (2018).
     5. MODEL CODE OF PROF'L RESPONSIBILITY DR 7-102(A)(7) (AM. BAR ASS'N 1980)
(emphasis added).
     6. MODEL RULES OF PROF'L CONDUCT r. 1.2(d) (AM. BAR ASS'N 2018) (emphasis added).
The ABA similarly narrowed the provision on wrongful conduct by lawyers themselves. The
Model Code subjected lawyers to sanction for [e]ngag[ing] in illegal conduct involving moral
turpitude, whereas the Model Rules target a lawyer's commission of a criminal act that
reflects adversely on the lawyer's honesty, trustworthiness or fitness in other respects. MODEL
CODE OF PROF'L RESPONSIBILITY DR 1-102(A)(3) (AM. BAR ASS'N 1980) (emphasis added);
MODEL RULES OF PROF'L CONDUCT r. 8.4(b) (AM. BAR ASS'N 2018) (emphasis added).
     7. Tremblay, supra note 4, at 272-73.

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