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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.