Why Central Bank Should be Overruled

May 1, 2003

Roger C. Cramton

The lawyer’s primary function is to counsel and assist clients in conduct that is “within the bounds of the law.” The fundamental limitation on what lawyers may do for clients is stated in ABA Model Rule 1.2(d) as follows: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent ....” “Knows” is defined in Rules 1.0(f) as “actual knowledge of the fact in question,” but broadened by the qualification that “[a] person’s knowledge may be inferred from circumstances.” The modern justification of the attorney-client privilege and the professional duty of confidentiality, a leading case tells us, is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” The underlying assumption justifying lawyer confidentiality is that the “fully informed” lawyer will channel client conduct along lawful paths, furthering the public interest in “observance of law.”

Why Central Bank Should be Overruled