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ABA passes hotly debated amendments to Model Rule 1.16

8/16/23

By: Patrick J. Cosgrove and Yinan Ma

The ABA House of Delegates approved amendments to ABA Model Rule of Professional Conduct 1.16, Declining or Terminating Representation, and Comments [1], and [2]. According to the Report to the House of Delegates that accompanied the resolution, these amendments reflect the ABA’s efforts to help lawyers detect and prevent becoming involved in a client’s unlawful activities or corruption. In other words, the amendments are intended to help lawyers avoid entanglement in a client’s unlawful activities.

The amended Model Rule added language that “[a] lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation.” The Model Rule was further amended to state that a lawyer shall withdraw from the representation of a client if “the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.”

It is important to note that the amendments to the Model Rule’s comments impose obligations on lawyers to inquire into and assess representations of clients throughout the entire engagement. There are some examples provided in the amendment to Comment [1]. This due diligence is informed by the risk that the client seeks to use or persists in using the lawyer’s services to commit a crime. The amendments to the comments also clarify that a lawyer’s due diligence will vary for each prospective client or client, depending on the level of potential risk. Accordingly, lawyers may consider the following factors when determining the level of risk: the identity of the client – and whether the client is a natural person or entity; the lawyer’s experience and familiarity with the client; the nature of the requested service; the jurisdictions involved in the representation; the identities of those depositing or receiving funds from the lawyer’s client trust account.

Although this is a Model Rule that has not yet been adopted by any state, lawyers should be aware of the amendments and pay close attention to the adoption of these amendments in the future in the states where they practice, as questions remain regarding the real world interpretation and application of the amendments.

Should you have any questions regarding the amendments, please contact Patrick J. Cosgrove at patrick.cosgrove@fmglaw.com, Yinan Ma at yinan.ma@fmglaw.com, or your local FMG attorney.