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

6. E.g., Thomas H. Lee Equity Fund V, L.P. v. Mayer Brown, Rowe & Maw LLP, 612 F. Supp. 2d 267 (S.D.N.Y.
2009) (although law firm’s knowing and substantial participation in perpetuating client’s fraud does not state claim
under federal securities law, the same facts do state a claim for aiding and abetting common law fraud).
7. See, e.g., FRCP 9(b), 60(b).
8. RLGL §§ 82, 93 (crime-fraud exceptions to attorney-client privilege and work product immunity); United States
v. Chen, infra.
9. Restatement (Third) Torts § 892 C, Restatement (Second) Contracts § 355, Restatement (Third) Restitution and
Unjust Enrichment §§ 13, 51.
10. E.g., Spaulding v. Zimmerman, supra.
11. Overall statistics concerning fraud are not available in the United States, but a comparison of several studies
indicates that fraud crimes account for ten times the loss that more conventional crimes (such as burglary, robbery, and
auto theft) cause. Brenda L. Nightingale, The Law of Fraud and Related Offences 1-24.1 (Carswell 2000). One example
is the failure of Lincoln Savings & Loan, which cost taxpayers at least $2.5 billion. Bad Day at Jones Day; A Record
Payment Gets the Law Firm off the Hook in the S&L Debacle, Time, May 3, 1993, at 23. Canadian statistics for the year
1999 indicate that over one-quarter of all criminal prosecutions were for fraud-related crimes. Nightingale, supra, at 1-
21.
12. Sissela Bok, Lying: Moral Choices in Public and Private Life 23 (Vantage Books 2d. ed. 1999).
13. RLGL § 98; Restatement (Second) Torts §§ 525, 526 (1977); Restatement (Third) Torts: Liability for Economic
Harm §§ 9, 10 (Tentative Draft No. 2 (April 7, 2014).
14. Restatement (Second) Torts § 527; Restatement (Third) Torts: Liability for Economic Harm § 10, Comment c.
15. E.g., Baker v. Dorfman, 239 F.3d 415 (2d Cir. 2000) (lawyer who lied in his resume about the extent of his legal
experience to a client liable for fraud, including compensatory, emotional distress, and punitive damages); Florida Bar v.
Marrero, 157 So. 3d 1020 (Fl. 2015) (lawyer who drafted, executed and witnessed a mortgage loan document
containing a misrepresentation that the borrowers had legal authority to encumber the property violated Rule 8.3(c).
16. RLGL § 98, Comment d; Restatement (Second) of Torts § 551; e.g., Vega v. Jones, Day, Reavis & Pogue, 17 Cal.
Rptr. 3d 26 (Cal. App. 2004) (partial disclosure that omitted material fact constitutes fraud to third party).
17. MR 3.3, 4.1(a), 8.4(c).
18. MR 1.2(d), 1.16, 3.3, 4.1(b).
19. MR 1.6(b)(2)(3), 1.13(c).
20. MR 3.3(a)(1). See, e.g., In re Aitken, 787 N.W.2d 152 (Minn. 2010) (lawyer forged client’s signature on a plea
agreement); In re Celsor, 499 S.E.2d 809 (S.C. 1998) (false notarization of client’s signature); In re Chovanec, 640
N.E.2d 1052 (Ind. 1994) (unprepared lawyer falsely told court he was too sick to proceed).
21. MR 4.1(a). See, e.g., In re Eliasen, 913 P.2d 1163 (Idaho 1996) (debt collection lawyer lied to debtor about
consequences of debt); In re Bennett, 501 S.E.2d 217 (Ga. 1998) (lawyer lied about representing a client in order to
receive insurance settlement); Disc. of Granham, 395 N.W.2d 80 (Minn. 1986) (lawyer in a real estate transaction lied
to parties about sending their deed to the county recorder’s office).
22. MR 8.4(c). See, e.g., In re Engel, I859 N.W. 2d 788 (2015) (lawyer acting as escrow agent in client’s fraudulent
schemes); In re Rios, 965 N.Y.S.2d 418 (App. Div. 2013) (lawyer intentionally influenced client to lie about the site of
her accident in order to pursue a fraudulent lawsuit).
23. See also MR 8.4(b).
24. Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 65.5 (4th ed. Aspen
2014).
25. MR 1.2(d), 3.3(a)(3), 3.3 (b), 4.1(b). E.g., In re Sheahan, 866 N.W. 2d 929 (Minn. 2015) (lawyer who assisted
client in fraudulent transfer of assets and falsifying evidence during a lawsuit and made false statements in response to
discovery request indefinitely suspended).
26. The duty to disclose to third persons in MR 4.1(b) (client frauds on third persons) only arises if an exception to
MR 1.6 would permit disclosure, but the duty in MR 3.3(b) (frauds on tribunals) is not so limited.
27. MR 1.13(c)(2) and Comment [6].
28. MR 1.0(f) defines knowledge as “actual knowledge of the fact in question, which may be inferred from the
circumstances,” a definition that seems to include willful blindness as well as actual subjective knowledge. E.g., In re
Wahlder, 728 So. 2d 837 (La. 1999) (lawyer who permitted his client to place the signature of client’s wife on a
settlement document and witnessed the signature when he knew wife did not personally sign the document violated
MR 4.1(a) and 8.4(a) and (d)); In re Disbarment Proc., 184 A. 59 (Pa. 1936) (lawyer disbarred for knowingly
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