Ethics

    Advising Clients About Law Enforcement Practices

    Tax attorneys debate informing clients about the ?audit lottery.?  The Restatement of the LGL, section 94, cmt. (f) suggests that it?s wrong to tell a client that the likelihood is that he won?t be audited if the lawyer is pretty sure that the client intends to violate the law, but the Restatement equivocates.

    In Thursday?s NYT, there?s a story about the assisted suicide lottery in England.  Assisted suicide is a felony punishable by 14 years in prison - no exceptions.  But the Law Lords have ordered the Attorney General to publish guidelines indicating what criteria are followed in deciding not to prosecute certain cases of assisted suicide.  Presumably, therefore, private counsel also can tell clients, ?It?s a serious felony, and you are absolutely forbidden to do it, but you almost certainly won?t be prosecuted if you go ahead.?

    I assume that it?s permissible under the Model Rules for a lawyer to say, ?It?s clearly unlawful, and therefore I advise you not to do [the illegal act], but if you do, you almost certainly won?t get caught.?