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24 Geo. J. Legal Ethics 187 (2011)
Ethics of Willful Ignorance, The

handle is hein.journals/geojlege24 and id is 189 raw text is: The Ethics of Willful Ignorance REBECCA RoIPHE* In general, courts, legislatures, and regulators do not excuse individuals, including lawyers, from legal obligations because they turned a blind eye to the underlying facts. By defining knowledge as actual knowledge, the ABA's Model Rules of Professional Conduct, however, allow lawyers to avoid responsibilities to the community and the public by remaining ignorant of relevant facts. For example, lawyers do not face disciplinary charges for assisting in client fraud as long as they avoid information that might lead them to know about the criminal conduct. David Luban, one of the leading scholars in the field, has defended the ABA 's approach, arguing that lawyers must be allowed to avoid the truth to protect the lawyer-client relationship. This Article questions Luban 's thesis. Tolerating willful ignorance not only undermines the rules that protect the public, but also conflicts with the premises of the attorney-client relationship. By defining knowledge as actual knowledge, the ethical rules promote duties to the public on the surface while allowing lawyers to ignore them in reality, which reinforces a sense that the responsibility to the community and the rules designed to enforce it are merely ornamental. Furthermore, this definition of knowledge undermines the efficacy of the attorney-client relationship by subtly promoting afailure ofcommunication and aborted investigations. As embodied in the rules ofconfidential- ity and privilege, the lawyer's access to all relevant information is necessary to represent the client well. The tacit approval of willful ignorance conflicts with such informed representation. This Article argues that the Model Rules ought to require all lawyers to pursue important and obvious facts and directly address the proper balance between the lawyers'loyalty to the client and obligation to the public with regard to the substantive rules in the context of diferent areas ofpractice. TABLE OF CONTENTS INTRODUCTION.......................................... 188 I. BACKGROUND ...................................... 192 * Associate Professor of Law, New York Law School. Ph.D., University of Chicago (2002); J.D., Harvard Law School (2000). I would like to thank the participants of the first Ethics Schmooze, organized by Fordham Law School, Stanford Law School, Georgetown University Law Center, and Columbia Law School, for their invaluable comments on an earlier draft. I would especially like to thank David Luban for his willingness to engage dissent. In addition, Elise Boddie, Elizabeth Chambliss, Doni Gewirtzman, Bruce Green, James Grimmelmann, Benjamin Gruenstein, Molly Land, Tanina Rostain, Houman Shadab, and Faith Stevelman have offered their valuable insight. @ 2010, Rebecca Roiphe. 187

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