THE RECORD - New York City Bar Association

F U G I T I V E C L I E N T; I L L E G A L C O N D U C T
quiry. A lawyer must be satisfied, on the facts before him and
readily available to him, that he can perform the requested services
without abetting fraudulent or criminal conduct and without
relying on past client crime or fraud to achieve results the client
now wants. Otherwise, the lawyer has a duty of further inquiry.
ABA Inf. Op. 1470 (1981) (opining on a lawyer’s obligation to engage in
further inquiry where a client requested a lawyer’s advice as to lawful means
of bringing funds into the United States in a manner that avoided or
minimized tax liability, but where the lawyer suspected that the funds
represented payments of unlawful bribes or kickbacks); ABA Inf. Op. 1517
(1986) (opining that, where a client has requested that charges for corporate
legal work as well as for personal legal services to the sole shareholder
of the corporation be billed directly to the corporation without identifying
the personal nature of the legal services, and where the lawyer has
reason to believe that the shareholder might cause the corporation to
deduct the entire fee as a business expense, the lawyer cannot avoid a
violation of the rules against assisting a client in conduct the lawyer knows
to be illegal or fraudulent by disclaiming knowledge of illegality or fraud
when the lawyer has, without inquiry, recklessly and consciously disregarded
information that plainly suggests that a crime or fraud is involved.
((citing ABA Formal Op. 346 (Revised) (1982)); see also ABA Formal Op.
346 (1982) (opining that a lawyer violates the Code where, as part of an
opinion relating to tax shelter investments, the lawyer accepts as true
facts told to her when the lawyer should know that a further inquiry
would disclose that these facts are untrue ); ABA Formal Op. 335 (1974)
(opining as to the circumstances under which and the extent to which
the Code requires that a lawyer make some effort to verify or supplement facts
submitted as a basis for an opinion relating to registration of securities).
Accordingly, assuming that there are no legal prohibitions, a lawyer
may engage in conduct on behalf of the fugitive client under circumstances
that give rise to a suspicion that the conduct may be used to
further an illegal or fraudulent act only after assuring him or herself that
there is reasonable support for an argument that the client’s intended use
of the fruits of the representation will not further a criminal scheme or
act. Of course, the lawyer retains the discretion to refuse to engage or
participate in such conduct if the lawyer is not satisfied that such action
is lawful. We also note that a lawyer may withdraw from the representation
if the lawyer reasonably believes that the client is using such services
to commit a crime or fraud. See DR 2-110(C)(1)(b) (stating that a lawyer
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