Crossing the line and too much information! Effective Nov. 1, 2018 Cal. Rule of Professional Conduct 1.2.1.
The issue is if a lawyer knowingly choses a form, that is outdated, because he likes that it contains a clause beneficial to the client, but that clause has been made unenforceable (i.e. illegal) due to a statute or case law, the lawyer breached his fiduciary duties and the Code of Professional Conduct. This issue is common in leases, contracts, promissory notes, etc. Especially issues such as binding arbitration, choice of law, choice of venue, forfeiture of deposits, issues regarding a party filing bankruptcy, waiver of the right to jury trial, usury. How about clients in the cannabis business? It is illegal under federal law, and the client’s business may also be illegal under local laws (e.g. no valid permit). What do you do when they ask you for assistance with a lawful component of their “illegal” business? Is the lawyer acting unethically to draft an employment agreement, or employee handbook for an unlicensed cannabis business? This is in addition to other grounds for Attorney’s liability for crimes, such as federal laws prohibiting conduct that aiding, abetting, violation of U.S. anti-money laundering laws 18 U.S.C. Sections 1956 and 1957 or assisting in a fraudulent conveyance “asset protection” estate plan.
Another issue is should the attorney limit the information obtained from a client? Will a talkative client disclose a conflict of interest or an illegal transaction? Balancing obtaining sufficient information to competently provide legal services, conflicts of interest, and knowing too much! See the ABA’s Suggestion as to information obtained from new clients.
Rule 1.2.1 Advising or Assisting the Violation of Law
(a) A lawyer shall not counsel a client to engage, or assist a client in conduct that the
lawyer knows* is criminal, fraudulent,* or a violation of any law, rule, or ruling of a
(b) Notwithstanding paragraph (a), a lawyer may:
(1) discuss the legal consequences of any proposed course of conduct with a
(2) counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning, or application of a law, rule, or ruling of a