Attorney Able is employed by Carl Client, a fugitive from justice under indictment for armed robbery. Attorney Able, after thorough legal research and investigation of the facts furnished by Carl, reasonably believes that the indictment is fatally defective and should be dismissed as a matter of law. Able advised Carl of his opinion and urged Carl to surrender. Carl told Able that he would not surrender. Attorney Able informed the district attorney that he represented Carl and that he counseled Carl to surrender, but that Carl refused to follow his advice. Attorney Able has not advised Client on how to avoid arrest and prosecution and does not know where Carl is hiding. Is Attorney Able subject to discipline if he continues to represent Carl Client?
A. Yes, because Client is engaged in continuing illegal conduct.
B. Yes, because Client refused to accept Attorney’s advice and surrender.
C. No, because Attorney is not counseling Client to avoid arrest and prosecution.
D. No, because Attorney reasonably believes the indictment is defective.
Answer:C
Attorney Able is employed by Carl Client, a fugitive from justice under indictment for armed robbery. Attorney Able, after thorough legal research and investigation of the facts furnished by Carl, reasonably believes that the indictment is fatally defective and should be dismissed as a matter of law. Able advised Carl of his opinion and urged Carl to surrender. Carl told Able that he would not surrender. Attorney Able informed the district attorney that he represented Carl and that he counseled Carl to surrender, but that Carl refused to follow his advice. Attorney Able has not advised Client on how to avoid arrest and prosecution and does not know where Carl is hiding. Is Attorney Able subject to discipline if he continues to represent Carl Client?
A. Yes, because Client is engaged in continuing illegal conduct. B. Yes, because Client refused to accept Attorney’s advice and surrender. C. No, because Attorney is not counseling Client to avoid arrest and prosecution. D. No, because Attorney reasonably believes the indictment is defective.
Explanation: Rule 1.2(d) draws a line between “counsel[ing] a client to engage…in conduct that the lawyer knows is criminal or fraudulent” and “discuss[ing] the legal consequences of any proposed course of conduct with the client. Comment 9 further explains “there is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the mean by which a crime or fraud might be committed.” Here, Able has counseled Carl to surrender. He is not counseling Carl to avoid prosecution and hide. Accordingly, “C” is the correct answer.