Lawyers and Client Fraud: They Still Don't Get It

Abstract

In 1991, the House of Delegates of the American Bar Association (ABA) was asked to approve a proposed amendment to Rule 1.6 of the Model Rules of Professional Conduct that would have given a lawyer wider latitude to disclose client fraud than is permitted under Rule 1.6 as it stands. The House rejected that proposal. In 1992, the Standing Committee on Ethics and Professional Responsibility issued Opinion 92-366 that attempts to accomplish the same objective. Opinion 92-366 provoked a dissent protesting that the Opinion's analysis was untenable. These events, together with some other developments to be noted further in this discussion, suggest the following point: When it comes to client fraud, lawyers- at least those involved in promulgating the rules of professional conduct- still don't understand what the problem is. More generally, the bar, at least the ABA, still does not seem to understand the responsibilities entailed in its endeavors to prescribe the law governing lawyers.