Mark Hinderks of Stinson, LLP. Courtesy photo

Dear Ethics Lawyer

This column, written by Mark Hinderks, of Stinson LLP, focuses on ethics questions. The discussion here is based on the ABA Model Rules of Professional Conduct, but the Model Rules are often adopted in different and amended versions, and interpreted in different ways in various places. Always check the rules and authorities applicable in your relevant jurisdiction—the result may be completely different.

Question: Our firm is considering its processes for new clients and new matter acceptance and intake. Of course, in addition to analysis of conflicts, we're looking at practical red flags about potential clients, such as whether there is a prior history of changing lawyers, whether the potential client is willing to provide a retainer, etc. But, from an ethics perspective, do we have any affirmative duty at the outset or during a representation to look deeper into the prospective client's business activities and purpose in hiring us?

Answer: You pose a very interesting and somewhat provocative question. Model Rule 1.16(a) has for many years prohibited a lawyer from representing a client if that representation would result in violation of the Model Rules or other law and has required withdrawal from the representation if it has already begun. Rule 1.16(b) has also permitted (but not required) withdrawal if the client persists in a course of conduct involving the lawyer's services that the lawyer "reasonably believes" is criminal or fraudulent. This covers the circumstance in which the lawyer suspects, but does not have actual knowledge of a client's nefarious purpose. These duties are buttressed by Rule 8.4 defining Misconduct and are carried through in other rules, e.g., Rules 1.2(d), 3.1. Traditionally, however, these duties have been believed to be triggered when facts come to the lawyer's attention that raises an issue about the client's purpose or intent. In the absence of a red flag about the matter, the Model Rules did not reference an affirmative duty to assess the bona fides of a client or matter, except in the case of litigation, where there has been a threshold duty to determine a reasonable basis for a claim or defense before advancing it.