[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

fail to maintain the distance critical to evaluating a client’s conduct. Business lawyers’ in
particular may experience a “chronic source of moral difficulty”: assisting a client’s business
goal of gaining a competitive advantage required them to skate too close to the edge of the
law and put other people’s money at risk. 2 Lawyers who continue to advocate for such a
client unwittingly, negligently, or knowingly can become an instrument of wrongdoing or
an accessory to corrupt and dishonest conduct. The behavior of lawyers who do this
suggests that they might view the law as a malleable means to pursue a client’s objectives,
rather than as a set of rules with some clear boundaries that should have shaped both their
clients’ and their own behavior.
The Bounds of the Law
Lawyers can be put in a position of real conflict when it comes to abiding by client
instructions. On one hand, the fiduciary duty embedded in the Model Rules admonishes
lawyers to do everything they can to help fulfill the client’s goals of the representation —
goals that are to be determined by the client. 3 On the other, clients can make decisions that
the lawyer believes reflect bad judgment, or worse, that suggest to the lawyer that the client
might be engaging in conduct that could run afoul of the law and subject the client (and
perhaps the lawyer) to liability. 4 When lawyers place too much weight on the former role
— simply being instruments and unquestioningly abiding by their client’s instructions —
they disserve the client by failing to share their independent view of the merits of the course
of action, a failure that can facilitate wrongful behavior, opening their clients to potential
legal consequences. 5 Willfully blind lawyers also can expose themselves and their law firms
to significant liability.
It is important to realize that a lawyer can be subjected to allegations of assisting client
misconduct in at least three different circumstances. In the first, lawyers, like those in Chen,
unwittingly or innocently participate in the client’s fraud by providing legal services to a
client who, unbeknownst to the lawyer, is using this to break the law. In the second,
perhaps like Markley in Cruze, lawyers act negligently by failing to identify or act upon red
flags, which, with the benefit of 20-20 hindsight, will be characterized as clear warnings
that the client was engaged in wrongful conduct. The third, and most serious involves
lawyers, perhaps like those in ACC and Stratos, who act recklessly or intentionally by
blindly ignoring clear warning signs, or worse, by purposefully assisting a client to violate
the law.
Everyone recognizes the last as a clear example of lawyer misconduct, that can result in
criminal and civil consequences and professional discipline. But the middle example can get
lawyers in almost as much trouble, and the first, unwitting involvement, requires an
immediate response at the point the lawyer discovers the client’s unlawful activity. In all of
these circumstances, the lawyer who fails to keep the proper distance and overidentifies
with the client is the lawyer who is most likely to ignore the warning signs.
The collapse of large organizations due to fraud also illustrates how the many faces of
corporate identity can have grave consequences for lawyers when an entity fails. At that
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