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

pardoned for the crime. 12 At the same time, a conviction is conclusive evidence that a
lawyer committed the crime. 13
Third, the cases make clear that the criminal conduct need not involve client
representation. 14 Fourth, serious criminal conduct may indicate an immediate risk to
clients or the public. For this reason, many states allow for immediate interim suspension of
a lawyer following the conviction of a serious crime or a felony. 15 The lawyer remains
entitled to a disciplinary hearing at a later date that might provide evidence of mitigation of
the sanction.
Client Crimes
Unlike Belge, Casey seemed oblivious to the fact that criminal law placed legal limits on his
representation of a client. He was either unaware of Colorado’s criminal impersonation
statute, or unaware of its application in his client’s case. Casey illustrates that lawyers must
not only avoid criminal acts themselves, but also must understand the criminal law to give
competent legal advice to clients. Model Rule 1.2(d) prohibits lawyers from knowingly
assisting or counseling client crimes or frauds. 16 Courts focus on whether the lawyer knew
about the client’s conduct; ignorance of the fact that the client’s conduct was a crime is no
defense. 17
For example, the moment Casey learned that his client had given the police an assumed
name, he also learned that she was committing another crime (whether he realized it or
not). At that point, Casey should have told his client about the legal significance of her
conduct and advised her to correct the record; that is, to cease her criminal activity. His
incompetence eventually led him to facilitate a client felony (criminal impersonation) that
was much more serious than the original misdemeanor charge (trespass).
A lawyer who fails to recognize his client’s crime also can fail to properly identify the
criminal activity as past, continuing, or future. The crime of Casey’s client did not end
when she gave someone else’s driver’s license to the police. She continued her criminal
conduct by using the assumed identity in court records and in negotiations with the
prosecutor. Casey’s failure to understand that his client was engaged in a continuing crime
prevented him from recognizing that Model Rule 1.2(d) had been triggered. Failing to
appreciate his client’s continuing crime further meant that his appearance on behalf of a
client with an assumed name assisted her crime. It also meant that he lied to the court.
Accessorial Liability
One issue Casey did not discuss was whether the lawyer’s conduct went far enough to
constitute a violation of Model Rule 8.4(b), as well as 1.2(d). Although Casey did not
violate the criminal impersonation statute directly, he might have been guilty of accessorial
liability — that is, he might have been an accomplice to his client’s crime.
Typical accomplice statutes prohibit intentional “aiding,” “abetting,” “advising,”
“assisting,” “counseling,” or “encouraging” the criminal act of another. 18 Model Rule
242