Another Look at Lawyer Discretion to Assist Clients in Unlawful Conduct: A Response to Professor Tremblay

Professor Paul Tremblay’s At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct, identifies and explores an apparent gap in the law governing the work of lawyers: the question of whether lawyers may assist clients in unlawful conduct that is not criminal or fraudulent. After introducing the issue through three illustrative scenarios, which he labels “lawbreaking stories,” Professor Tremblay engages in an extensive analysis of the applicable substantive law, relying primarily on ethics codes, which directly regulate the work of lawyers, with additional reference to other sources of law. Having reached the considered conclusion that the law does not prohibit lawyers from assisting clients in unlawful or wrongful—but not criminal or fraudulent—conduct, Professor Tremblay moves to the next stage of his analysis, examining the further question as to the nature and scope of the lawyer’s ethical discretion to assist—or to refuse to assist—a client in unlawful or wrongful conduct. Building on Professor Tremblay’s analysis, this response aims to briefly evaluate the central question he raises—the lawyer’s discretion to assist a client’s unlawful conduct—by reframing the issue through the prism of a three-tiered, or three-pronged, framework. In so doing, this response suggests that, to the extent Professor Tremblay has identified cases in which ethics codes and other sources of law do not directly or definitively mandate a particular mode of action on the part of lawyers, an assessment of the issue may require a close look at three complementary—but, at times, competing or conflicting—duties underlying ethics codes: the duty to serve the best interests of the client, the duty to promote justice within the American legal system, and the duty to the lawyer’s own sense of ethical morality