The ABA ethical rules state that a lawyer may not assist a client in conduct that she “knows” is criminal or fraudulent. In this article, I argue that we ought to hold lawyers responsible when they remain willfully ignorant of their clients’ illegal activity. When a lawyer suspects that her client might be engaged in criminal or fraudulent activity, she should have an obligation to investigate. I disagree with prominent legal ethics scholar, David Luban, who has argued that lawyers should be able to turn a blind eye to signs of wrongdoing. I argue that rather than undermining the attorney client relationship, this new obligation would help lawyers serve their clients by encouraging lawyers to understand the full facts of the case.
Georgetown Journal of Legal Ethics, Vol. 24, Issue 1 (Winter 2011), pp. 187-224