The Lying Client Dilemma

Elizabeth J. Cohen’s article, “Risk Management Speakers Debate Duties When Suspicions Arise That Client Is Lying,” reports on a recent discussion panel held in Chicago called “Watching Your Step: Uncovering and Working Through Client Lies,” focused on what a lawyer’s obligations are when dealing with a client who may not be telling the truth. Thomas Sukowicz, the panel host, explained it well when he said that an untrustworthy client triggers a difficult tension between a lawyer’s “obligation of confidentiality and the obligation of professional independence.”

Featured panelists commented that modern lawyers are driven by “causes” such that the boundaries of attorney-client confidentiality are more likely to bend. Unlike previous generations of attorneys, this modern generation believes that “the cause justifies keeping the client’s secret.”

Nevertheless, panelist Mark Tuft explained that Model Rule of Professional Conduct 1.4 and Comment 9 to Rule 1.2 illustrate the fine line that attorneys walk in offering legal advice to a client who may use that advice to commit fraud or criminal activity.

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Comment 9 emphasizes the critical distinction between legal analysis and improper recommendations. According to the Comment, “the prohibition on a lawyer from knowingly counseling or assisting a client to commit a crime or fraud . . . does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action.”

Additionally, Rule 1.4(a)(5) offers attorneys a safety valve by explaining that “a lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” A relevant limitation includes the impermissible assistance of a client in committing a crime.

Finally, Tuft reminded panel-attendees, “a core concept of [the rules of professional responsibility] is client autonomy. A client will do what they choose to, and the lawyer’s obligation does not arise until he has actual knowledge of client wrongdoing.”

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