| LEO Num | Topics | Summary | Date |
ABA-513
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| (Recent changes to ABA Model Rule 1.16 make explicit what has always been an implicit “duty to inquire into and assess the facts and circumstances of a representation” (as previously described in ABA LEO 463 (5/23/13) and ABA LEO 491 (14/29/20)). ABA Model Rule 1.16(a)’s now-explicit duty applies “more broadly” than just to the type of transactions that may involve a “lawyer facilitation of criminal transactions such as money laundering and terrorist financing”. The duty exists when any representation begins, and also “continues throughout the course of the representation.” As explained in the earlier ABA LEOs, the new ABA Model Rule 1.16(a) provision requires lawyers to “conduct an inquiry and assessment, appropriate to the circumstances, to avoid counseling or assisting in the client’s fraudulent or criminal conduct.” The assessment must take “[a] risk-based approach [which] incorporates the concepts of reasonableness and proportionality.” ABA Model Rule 1.16 cmt. [2] identifies “five non-exclusive factors” that lawyers might consider when undertaking the risk-based analysis. The ABA Model Rule 1.16 amendments “anticipated that only certain representations would necessitate only a significant inquiry, namely, those where there appeared to be a heightened risk of crime or fraud typically because of the nature of the representation or because of the appearance of ‘red flags’”. Lawyers must decline a representation if they have “actual knowledge” that their services will be improperly used. Otherwise, lawyers must “conduct a reasonable risk-based inquiry, not a perfunctory one and not one that involves a dragnet-style operation to undercover every fact about every client.” Thus, “lawyers must conduct a reasonable inquiry and assessment, proportionate to the risks presented by the facts and circumstances.” The assessment does not involve a “‘zero failure’ approach” – and “the lawyer’s judgment should be evaluated as the time it was made, not with the benefit of hindsight.” Lawyers should focus on representations that have heightened risk of misuse – such as those involving “purchasing and selling real estate,” representations where clients “use time pressure to rush a lawyer’s work, hoping to achieve their misconduct before the lawyer (or anyone else) has time to discover it,” and representations that involve “transferring large sums of cash” – especially funds “originating outside the United States” (because experience has shown that “[a] higher risk of participating in money laundering or terrorist financing exists when the lawyer ‘touches the money’”. In connection with conducting such a necessary inquiry, “[t]he lawyer need not resolve all doubts” – “if some doubt remains even after the lawyer has conducted a reasonable inquiry, the lawyer may proceed with the representation as long as the lawyer concludes that doing so is unlikely to involve assisting or furthering a crime or fraud.” | 8/23/2024 |
0278
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| A client's wife stole a document from the client's employer to use in a lawsuit. As long as the client's lawyer was not involved in the theft, the lawyer may continue to represent the client and use the document. [LEO 1702 would require the lawyer to return the stolen document.] | 1/29/1976 |
0386
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| A lawyer is not obligated to disclose the location of a weapon the lawyer discovered during an investigation, as long as the lawyer did not remove or conceal the weapon. | 8/29/1980 |
1076
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| A lawyer may contact an adversary's expert witness, although "courtesy" would suggest that the lawyer advise the adversary's counsel. The Bar also indicated that a lawyer receiving "selected items" from an opponent's file from "some unknown third party" was not obligated to return the materials and could read and use them for the client's benefit (the Bar noted that "out of professional courtesy you should inform the opposing counsel that you have received these materials.") [LEO 1702 would require the lawyer to return the materials without reading them.] | 5/17/1988 |
0404
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| A lawyer may not reveal information about where a client hid a weapon. | 2/27/1981 |
0551
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| A lawyer must turn over documents that are "fruits or instrumentalities" of a crime. | 11/23/1983 |
0709
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| A lawyer must turn over documents that constitute the "fruits or instrumentalities" of a crime even if the lawyer's client is not the person charged or under investigation (in this case, the document was an insurance remittance voucher relevant to a police investigation). | 7/11/1985 |
1141
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| A lawyer representing a widow in a medical malpractice/wrongful death action may use files taken by the widow from the treating physician's office. The files are not "fruits of a crime" but the lawyer should advise the widow to return the original of the file. The lawyer could keep and use a copy of it. [This LEO was overruled by LEO 1702.] | 10/17/1988 |
1202
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| A lawyer representing alleged drug dealers discovers cash that the clients claim is unrelated to their criminal activity. If the lawyer is "convinced that this recently discovered money is not a fruit of a crime," the lawyer has no duty to reveal it. | 2/22/1989 |
1324
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| Even if it is not illegal, a lawyer cannot tape record conversations without the other party's consent, or assist the client in doing so. A lawyer may use such a recording made by the client before the client retained the lawyer, and must keep the client's activity confidential [overruling LEO 1217.] [Effectively overruled in Virginia LEO 1802] | 2/27/1990 |
1049
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| If a lawyer has a legal duty to turn over the personal effects of a client's step-daughter who has charged the client with rape, then the lawyer would violate an ethical duty by failing to do so. | 3/2/1988 |
0953
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| Indicating that a lawyer must turn over a weapon received from a client because it is a "fruit or instrumentality" of a crime. | 8/21/1987 |
491
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| Lawyers have a duty under ABA Model Rule 1.1, 1.3, 1.4, 1.13, 8.4 and 1.16 "to inquire further to avoid assisting" clients' wrongful conduct if the lawyer "has knowledge of facts that create a high probability that a client is seeking the lawyer's services in a transaction to further criminal or fraudulent activity." "Failure to make a reasonable inquiry is willful blindness punishable under the actual knowledge standard" of ABA Model Rule 1.2(d). The "Committee rejects the view that the actual knowledge standard of [ABA Model] Rule 1.2(d) relieves the lawyer of a duty to inquire further where the lawyer is aware of facts creating a high probability that the representation would further a crime or fraud." If a client "refuses to provide information or asks the lawyer not to evaluate the legality of a transaction the lawyer should explain to the client that the lawyer cannot undertake the representation unless an appropriate inquiry is made." | 4/29/2020 |
ABA-463
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| The Model Rules "do not mandate that a lawyer perform a 'gate-keeper' role" to "combat money laundering and terrorist financing." The ABA's August 2010 Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing takes the proper "risk-based approach" rather than a "rules-based" approach. Lawyers following those guidelines can comply with the Model Rules by avoiding improperly assisting money laundering or terrorist financing. Among other things, lawyers may terminate representations under Rule 1.16 if the lawyer "reasonably believes" clients are engaging in criminal or fraudulent conduct, even if the lawyer does not "know for certain" that clients are engaging in illegal conduct | 5/23/2013 |