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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?