CBA Record November-December 2024

exclusive factors to consider in determin ing whether to undertake or continue a representation: (i) the identity of a client, including any beneficial ownership, (ii) the lawyer’s experience and familiarity with the client, (iii) the nature of the legal services that the client is requesting, (iv) the relevant jurisdictions involved, keeping in mind whether an implicated jurisdiction is considered “high risk” for money laundering or terrorist financing, and (v) the identities of anyone deposit ing into or receiving funds from the law yer’s client trust account or other accounts in which client funds are held. Comment [2] provides other resources for further guidance on assessing the risk a client or prospective client poses. In the rare situation where the inquiry provides a lawyer with actual knowledge that the lawyer’s services would be used to commit or further criminal or fraudulent behavior, the lawyer must decline or ter minate the representation. I would also encourage the lawyer to review his or her obligations under Rule 1.6 (Confidenti ality) and determine whether the lawyer can or must make additional disclosures. Finally, when reviewing the facts and circumstances leaves a lawyer with unre solved questions, the lawyer must try to resolve those questions before undertak ing or continuing the representation. Lawyers are not required to resolve all doubts; they can undertake or continue a representation so long as they can con clude that their services are unlikely to be used to assist criminal or fraudulent behavior.

PRACTICAL ETHICS BY TRISHA RICH ABA Formal Opinion 513 Provides Guidance on Duties to Inquire into Facts and Circumstances of Representation

I n August, the American Bar Associa tion issued Formal Opinion 513, titled Duty to Inquire Into and Assess the Facts and Circumstances of Each Representation. The opinion offers an overview of the recent amendments to ABA Model Rule of Professional Conduct 1.16 and clari fies the intent of the new language. This opinion builds on Formal Opinion 491 issued in 2020. The starting point for this analysis begins with Rule 1.2(d) (Scope of Rep resentation and Allocation of Authority Between Lawyer & Client), which pro hibits lawyers from advising or assisting a client in conduct that the lawyer knows to be criminal or fraudulent. An inquiry into the facts and circumstances of a represen tation, meant to ensure the lawyer is not advising or assisting a client in such behav ior, has always been implicit in the lawyer’s requirement to comply with Rule 1.2(d). As the Opinion notes, this responsibil ity can be read into several Rules, includ ing Rule 1.1 (Competence), Rule 1.3 (Diligence), Rule 1.4 (Communication), Rules 8.4(b) and (c) on honesty, and in the duty to withdraw under Rule 1.16(a). While these responsibilities were already implicit , the ABA amended Rule 1.16 in 2023 to make it explicit (note: state supreme courts promulgate the RPCs and the Illinois Supreme Court has yet to adopt the recent changes to Rule 1.16

that now appear in the Model Rules of Professional Conduct). The ABA’s amendment to Rule 1.16 included changing both the black letter rule and the Comments. The text of the new Rule 1.16 now explicitly requires lawyers to inquire into the facts and cir cumstances of each representation to determine whether the lawyer can accept or continue the matter and to reject or terminate work if the client seeks to use or uses the lawyer’s services in the further ance of a crime or fraud, even after discus sions with the client to the contrary. The changes in the Comments clarify that this obligation is ongoing throughout the life of the matter, and provide guidance on how the inquiry should be conducted. These changes result from ongoing engagement between the ABA and gov ernmental entities on whether lawyers have been strident enough in ensuring that their services were not used to facili tate certain criminal activities, including money laundering and terrorist activities. As the Rule now explicitly states, law yers must undertake a level of inquiry and assessment appropriate to the cir cumstances before beginning representa tion. The scope and extent of an inquiry will vary by client. Usually, they will not exceed what a careful lawyer should do during a normal client intake process. New Comment [2] identifies five non

Trisha Rich is a commercial litigator and legal ethicist at Holland & Knight, the Secretary of the Chicago Bar Association, and the Past President of the Association of Professional Responsibility Lawyers, the national bar association for legal ethicists.

The Chicago Bar Association Symphony Orchestra & CBA Chorus in Concert Enjoy the sounds of the CBA Symphony Orchestra and Chorus on Saturday, March 1, 2025, at 7:30 p.m. at St James Cathedral (Wabash @ Huron). Reduced price tickets available now at https://cbamarch.eventbrite.com.

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