Lawyers are duty-bound to uphold the law while protecting their clients’ rights. As part of that, lawyers regularly advise clients on whether a particular strategy or approach is within the confines of the law.

But what should a lawyer do when a client indicates that they’re not going to follow legal advice or, more seriously, that they intend to break the law?

This tension is not uncommon for those who practice regularly in criminal or white collar law. But for lawyers who do not specialize in criminal law, it can be difficult to know how to respond when a client says that they do not intend to comply with the law.

When a client seeks advice or proposes a strategy that potentially runs afoul of the law, navigating the situation can create risks for both the client and the lawyer. Here are some considerations if a client asks for advice regarding potentially problematic or illegal conduct.

Duty to provide competent representation

ABA Model Rules of Professional Conduct 1.1, 1.2, and 1.3 set forth some of the general duties of lawyers to their clients and to the legal system at large. These rules require lawyers to provide competent representation, to abide by client decisions in certain circumstances and to exercise diligence within the bounds of the law.

As part of the obligation to provide competent representation to clients, lawyers are required to apply the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ABA Model Rule of Professional Conduct 1.2(d) confirms that lawyers are not permitted to advise clients to engage in conduct that the lawyer knows is also fraudulent or a violation of any law. The rule also prohibits lawyers from going a step further and assisting clients in violating the law. However, this doesn’t mean that lawyers must disengage when clients suggest conduct that potentially violates the law.

Lawyers are ethically permitted to provide advice regarding the application or validity of the law in question. This advice may include analysis of the risks of potentially violating the law as well as the potential punishments for any such violations. Providing that perspective to a client could cause a prudent course correction by the client, which could then alleviate any other ethical concerns about the client’s proposed conduct.

Safeguard attorney-client privilege and confidentiality

One of the fundamental pillars of the attorney-client relationship is the inherent protections for privileged or confidential information. The importance of these protections cannot be overstated. They encourage clients to speak forthrightly and truthfully to lawyers. This type of open communication typically allows lawyers to provide legal advice without concern that those communications will be made public.

As a result, the rules of professional conduct emphasize the importance of maintaining client confidentiality, even when the lawyer has knowledge of potentially illegal conduct by a client. Lawyers who do not take their duty of confidentiality seriously in such situations may face their own punishment or claim.

In particular, the rules provide that even when a lawyer is aware that a client is about to commit a serious crime, that lawyer is not required to disclose that confidential information. ABA Model Rule of Professional Conduct 1.6(b)(1) provides that a lawyer may reveal confidential information to the extent the lawyer reasonably believes is necessary to prevent reasonably certain death or substantial bodily harm. Rule 1.6(b)(2) permits the disclosure of confidential information to prevent substantial injury to the financial interests or property or another (regarding which the client has used or is using the lawyer’s services). But even in those circumstances, the lawyer is not required to disclose. If the client’s anticipated crime does not present these risks of harm, then disclosure by the lawyer is prohibited.

Limits on advice

Lawyers provide counsel and guidance on the law. Lawyers are permitted to describe the risks of a client’s noncompliance with the law, but can create risk for themselves (and the client) when they encourage or, worse yet, participate in illegal conduct by a client.

Comment 9 to ABA Model Rule 1.2 states that, “[t]here is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Further, Rule 1.2(d) expressly distinguishes between lawyers assisting clients in criminal or fraudulent conduct and lawyers who merely discuss the legal consequences of an act or otherwise assist clients in making a good faith effort to determine the scope or meaning of the law—only the former is prohibited.

Accordingly, a lawyer may run afoul of his or her ethical obligations if the lawyer’s advice goes beyond an objective evaluation of the law and recommends the means by which a crime or fraud might be committed with impunity. Further, if a lawyer and client are engaged in a crime or fraud together, that can put the attorney-client privilege at risk and result in the disclosure of otherwise-protected information.

Seek counsel from others when in doubt

Although the ethical rules provide some general guidance to lawyers about how to navigate these issues, it can be complicated. Lawyers dealing with a client who is considering criminal acts, notwithstanding the lawyer’s contrary advice, may consider seeking the advice of their firm’s in-house counsel or that of specialized outside counsel.

Lawyers who specialize in this area of the law can provide assistance in how to honor requisite duties to clients, while also ensuring that no laws are broken (and avoiding bar grievances).

Keeping these tips in mind when providing advice can help lawyers provide competent representation to clients and avoid potential ethical pitfalls.