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

1.2(d) loosely incorporates these principles of accessorial liability. 19 The knowledge
requirement in Model Rule 1.2(d) roughly parallels the mens rea of the crime of accomplice
liability 20 and the “counsels or assists” language in the rule tracks the actus reus commonly
required by most accomplice statutes. Thus, a lawyer like Casey who facilitates a client
crime can be disciplined not only for violating Model Rule 1.2(d), but also for violating
Model Rule 8.4(b) if that lawyer has acted as a criminal accomplice.
Lawyers who intend to commit a serious crime (mens rea) and agree to aid the client in
committing it (actus reus) 21 also can become co-conspirators of their clients. In many
situations, an accomplice is also a co-conspirator. 22 Unlike accomplice liability, however,
conspiracy to commit a crime constitutes a separate crime, even if the underlying crime
itself is never completed. 23 The lawyer need not actually aid, abet, or assist, so long as she
purposely promotes the criminal act and agrees with the others that one of them will
commit it. 24 Conspiracy liability also can occur where lawyers claim mere incompetence;
that they simply failed to recognize client criminal conduct. Where there is evidence
showing that the lawyer assisted the client’s crime and the lawyer “deliberately closed his
eyes to facts he had a duty to see,” 25 courts have been willing to imply the knowledge or
recklessness necessary to make the lawyer legally responsible as a co-conspirator as well as
subject to professional discipline. In other words, lawyers who ignore what most lawyers
would not ignore can become co-conspirators. Of course, like accomplices, lawyer coconspirators
also have been subject to professional discipline for violating Model Rule
8.4(b). 26
The Criminal Law and Client Advocacy
Together, Belge and Casey illustrate the operation of the professional rules involving lawyer
and client criminal conduct. Lawyers who commit crimes themselves, or who assist or
counsel clients in committing crimes, might not only be indicted and convicted, but could
also lose their license to practice law. As federal and state criminal codes grow to address
ever-widening areas of conduct, lawyers in all kinds of practice must be able to identify and
respond to applicable criminal limitations on their client’s conduct as well as their own.
2. Failure to Disclose Facts Model Rules 1.6(b)(6), 3.3, 3.4, 8.4(c)RLGL §
120
In re Forrest
730 A.2d 340 (N.J. 1999)
PER CURIAM. . . .
. . . In March 1993, Robert and Mary Ann Fennimore, husband and wife, retained
Lieberman & Ryan to represent them in a personal injury action resulting from a car
243