An inch of progress: new ethics opinion gets real about assistance to fraud and crime
| DOI | https://doi.org/10.1108/JFC-04-2021-0091 |
| Published date | 19 June 2021 |
| Date | 19 June 2021 |
| Pages | 721-728 |
| Subject Matter | Accounting & finance,Financial risk/company failure,Financial crime |
| Author | Jacob Wade Petterchak |
An inch of progress: new ethics
opinion gets real about assistance
to fraud and crime
Jacob Wade Petterchak
Cardiff, New York, NY, USA
Abstract
Purpose –The purpose of this paper is to analyze the current law on the professional responsibility of
American attorneys to combat financialcrimes and developments in light of recent scandals andnew ethics
opinion from the American Bar Association. Further commentary isoffered on the ethics of advancing the
missionto not assist clientsin financial wrongdoing.
Design/methodology/approach –This paper offers a legal analysisof recent developments pertaining
to the ethical regulationof attorney conduct regarding client involvement in financialcrimes. Examination of
these developments in light of contemporary best practices in the banking and financial services industry
assists in determininghow to improve the current regulatory approach. Thereis an extensive review of case
law and both academic and professionalliterature.
Findings –The findings of this paper indicate that a proactive culture exists that acknowledges the
deficiencies that still exist in the regulation of attorney ethics to combat financial crimes by clients. Still,
significant gaps remain that need to be addressed. Further issues remain unresolved in the context of key
legal doctrinesthat set out clear, concise standards for knowledge and assistance.
Originality/value –The value of this paper comes from the carefulanalysis of present best practices in
banking and financialservices regulation and how they could be better applied in the contextof the attorney–
client relationship.
Keywords Fraud, Money laundering, Knowing assistance, Attorney ethics
Paper type Research paper
Introduction
On April 29, 2020 the AmericanBar Association (ABA) quietly published a groundbreaking
ethics opinion amid the chaos of the global pandemic regarding a lawyer’s responsibility
under Model Rule 1.2(d)to not knowingly assist clients in criminal or fraudulentconduct [1].
However, it is perhapsmost notable for what it does not mention, and that tells you justhow
serious a problem is when the most embarrassing public details about the impetus for the
opinion are very conspicuously omitted from the introduction. The quiet response to
something of this sort is all too familiar and is reminiscent of previous opinions and
guidance from leadership at the bar that have hitherto accomplished little and are almost
entirely unfamiliarto the vast majority of practitioners.
It is also very telling about the prioritiesof both the profession and its leadership because
the “tone at the top”is what matters mostwhen changing an apparent bad culture. This is a
tragedy in itself, and the ultimate consequence is that nothing changes because that is just
the way people seem to like it. That is patently unacceptable,but that might change in light
of recent developments.
The author would like to thank Professor Werner Menski for his generous insight and guidance.
Assistance to
fraud and
crime
721
Journalof Financial Crime
Vol.29 No. 2, 2022
pp. 721-748
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-04-2021-0091
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