The Ethics of Willful Ignorance

The ABA ethical rules state that a lawyer may not assist a client in conduct that she “knows” is criminal or fraudulent. In this article, I argue that we ought to hold lawyers responsible when they remain willfully ignorant of their clients’ illegal activity. When a lawyer suspects that her client might be engaged in criminal or fraudulent activity, she should have an obligation to investigate. I disagree with prominent legal ethics scholar, David Luban, who has argued that lawyers should be able to turn a blind eye to signs of wrongdoing. I argue that rather than undermining the attorney client relationship, this new obligation would help lawyers serve their clients by encouraging lawyers to understand the full facts of the case.