The Ethics of Willful Ignorance

Rebecca Roiphe, New York Law School

Abstract

In general, courts, legislatures, and regulators do not excuse individuals, including lawyers, from legal obligations because they turned a blind eye to the underlying facts. By defining knowledge as “actual knowledge,” the ABA’s Model Rules of Professional Conduct, however, allow lawyers to avoid responsibilities to the community and the public by remaining ignorant of the relevant facts. For example, lawyers do not face disciplinary charges for assisting in client fraud as long as they avoid information that might lead them to know about the criminal conduct. David Luban, one of the leading scholars in the field, has defended the ABA’s approach, arguing that lawyers must be allowed to blink reality to protect the lawyer-client relationship. This Article questions Luban’s thesis. Tolerating willful ignorance not only undermines the rules that protect the public, but also conflicts with the premises of the attorney-client relationship. By defining knowledge as actual knowledge, the ethical rules promote duties to the public on the surface while allowing lawyers to ignore them in reality, which reinforces a sense that the responsibility to the community and the rules designed to enforce it are merely ornamental. Furthermore, this definition of knowledge undermines the efficacy of the attorney-client relationship by subtly promoting a failure of communication and aborted investigations. As embodied in the rules of confidentiality and privilege, the lawyer’s access to all relevant information is necessary to represent the client well. The tacit approval of willful ignorance conflicts with such informed representation. The Model Rules ought to require all lawyers to pursue important and obvious facts and directly address the proper balance between the lawyers’ loyalty to the client and obligation to the public with regard to the substantive rules in the context of different areas of practice.