Whether the public thinks so, lawyers by and large are a very ethical lot. The same cannot always be said, however, about their clients.

Let's face it. Clients want to win, and some of them are not particularly impressed by rules or honesty. It is as though integrity were for the other guy. In fact, some clients shop for a lawyer who they perceive will attack their case with no holds barred — a lawyer who will allow them to play fast and loose with the truth — and worst of all, a lawyer who will actually participate in the game.

Clients of that ilk have one advantage over lawyers. They are not bound by The Rules of Professional Conduct. They have no law license at stake. And most importantly, they often are unsympathetic to the fact lawyers are different in this respect. Simply put, some clients will pressure their lawyer or even expect their lawyer to engage in fraudulent, dishonest, deceitful, malicious or unfair conduct. They may also expect the lawyer to assist them in such conduct.

Obviously, whether the lawyer engages in such conduct directly or counsels the client on the finer points of deception and dishonesty, the lawyer may have a license-threatening disciplinary problem. (See e.g., RPC 1.16, 3.3, 3.4, 4.1 and 8.4). One would hope personal integrity coupled with the threat of discipline would be more than ample reason for any lawyer to steer clear of such conduct. But for anyone who is looking for more, there is also civil liability.

To begin with, lawyers should understand their client's adversary often will consider the lawyer and client as one. In other words, if the client is evil, then so, too, is the lawyer because the lawyer is advancing the interests of an evil person and only an evil lawyer would do so. It is a perceived conspiracy. Such logic may be outrageous, but it is common.

The perception of a conspiracy grows even stronger when the lawyer becomes involved in the business or business decisions of the client. The multi-district litigation of In Re American Honda Motor Co., Inc. Dealerships Relations is a case in point.

Following the successful criminal prosecution of five former American Honda executives, numerous civil actions were filed across the country, including a RICO case against the law firm that was its general counsel. The action is still pending, and the allegations of wrongdoing are hotly contested. But, according to the complaint, the following occurred:

Certain high level executives of American Honda received kickbacks and other payments from various Honda dealers in return for various favors, such as an increased allocation of automobiles. The law firm assumed certain management responsibilities for American Honda, including conducting regular training sessions at national sales meetings on the company conflict-of-interest policy and handling all allegations of misconduct in the auto sales division.

Also according to the complaint, the law firm used this management function to participate in the concealment of the illegal scheme. In particular, the firm (1) counseled witnesses to give evasive or incomplete testimony; (2) conducted an investigation of the alleged kickback scheme but intentionally limited that investigation by not interviewing certain key players; and (3) directed American Honda to make false and misleading assertions about the results of the investigation.

The law firm filed a motion to dismiss, arguing that as a mere aider and abetter it was not subject to liability under RICO. The court noted, however, that concealment is a necessary element of any ongoing illegal activity; and a person who is in charge of a coverup plays an operational and management role in the enterprise conducting that activity. Consequently, the court denied the motion to dismiss. 1997 WL 136446 (D.Md.).

Any time a lawyer does something more for a client than practice law, the risk of liability to third parties rises sharply. For example, promoting a client's product or services exposes lawyers to potential claims of conspiracy, fraud and other intentional torts if either the client or the person dealing with the client proves to be less than honorable. Acting as an officer or director of a client places the lawyer in a management position where liability to third parties is even easier to establish.

The point is, clients pressure lawyers to do many things the prudent lawyer should avoid. It is up to the client to make his own business, economic and personal decisions based upon the advice given by counsel. But when it comes to legal ethics, the lawyer must stay in control.

Do not indicate any willingness to cross the ethics line. If you have a client that remains insistent upon prohibited conduct, study the Rules, do what is required and make a record to protect yourself.

This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.