Below is a portion of my article from the October 2023 edition of Bench & Bar that discusses August 2023 amendments to ABA Model Rule 1.16(a). The MSBA Professional Rules Committee discussed whether to make a recommendation to the MSBA regarding adoption in Minnesota of the amendment to ABA Model Rule 1.16. The Committee did not make any recommendation. It is unknown whether the Lawyers Board or the Office of Lawyers Professional Responsibility will make any recommendation regarding Rule 1.16 to the Minnesota Supreme Court.
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The lawyer as private investigator: Parsing new ABA Model Rule 1.16(a)—Inquiring Into and Assessing Representations
In August 2023, the ABA adopted a new first sentence for Rule 1.16(a) of the Model Rules of Professional Conduct, requiring lawyers to “inquire into and assess the facts and circumstances of each representation [of a client] to determine whether the lawyer may accept or continue the representation.” The amendment’s proponents stated, “This Resolution also will demonstrate to the U.S. Government… and the public that the profession takes seriously its obligations to avoid becoming involved in a client’s criminal and fraudulent conduct, including money laundering, terrorist financing, human trafficking and human rights violations, tax related crimes, sanctions evasion, and other illicit activity.”
The ABA also adopted amendments to two Comments to Model Rule 1.16. Comment [1] provides guidance regarding Rule 1.16(a). Comment [2] identifies factors for assessing “the risk that the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud.” The ABA adopted the amendments to Rule 1.16 and its Comments to preempt possible federal legislation that might well burden lawyers heavily.
The ABA Standing Committee on Ethics and Professional Responsibility, which proposed the amendments, stated, “These are not new obligations. Lawyers already perform these inquiries and assessments every day to meet their ethical requirements.”1
This article will examine evidence that supports and weighs against this statement. This article will also examine hypotheticals in several areas of the practice of law, to show how the amendments could create new obligations and important uncertainties.
ABA Model Rules are not the law until they are adopted in a governing jurisdiction. However, the Model Rules provide the basic template for ethics rules in all U.S. jurisdictions. In Minnesota, the MSBA, the Lawyers Board, and the Office of Lawyers Professional Responsibility will consider whether to recommend that the Minnesota Supreme Court add Model Rule 1.16(a) to the Minnesota Rules of Professional Conduct.2 Minnesota typically adopts Model Rules amendments unless it finds a strong reason for not doing so. However, the Minnesota authorities have occasionally not submitted any recommendation to the Court, because they regarded a Model Rule amendment as addressing a situation that did not exist in Minnesota to any significant degree.
Continue reading in Bench & Bar online (includes citations).