Can a lawyer advise a client about conduct that would be a crime in another state, and where is the line between advice and counseling a crime?

Plain-English summary

The committee was asked whether a lawyer may counsel a New York parent about removing her child from another state where the child resided with the other parent under that state's custody decree. Under the law of that state, even a natural mother's interference with lawful custody was kidnapping; the same conduct in New York would not be kidnapping but could, in certain circumstances, be a class A misdemeanor (Penal Law section 135.45). The committee framed two interpretive questions under DR 7-102(A)(7): whether illegality should be measured by New York law or the law of the place of the proposed conduct, and whether "counsel" means something more than giving legal advice.

The committee grounded its analysis in Canon 7's command that a lawyer represent a client zealously within the bounds of the law. It cited EC 7-5 (a lawyer should never encourage or aid a client to commit criminal acts or counsel the client on how to violate the law and avoid punishment), EC 7-22 (a litigant or lawyer may in good faith test the correctness of a ruling within the framework of the law), and DR 7-102(A)(7) (a lawyer shall not counsel or assist a client in conduct the lawyer knows to be illegal or fraudulent). Noting the Code had been adopted in essentially the same form by 49 states and the District of Columbia, the committee held that the Code's admonition contemplates that the situs of the act will ordinarily determine its legality.

On the meaning of "counsel," the committee drew the controlling distinction. Whatever the law of the situs, giving legal advice in and of itself cannot cast the lawyer as one who counsels or assists illegal conduct; where the lawyer does no more than advise the client of the legal character and consequences of an act, there is no impropriety, and that is the lawyer's proper function. But where the lawyer becomes a motivating force by encouraging the client to commit illegal acts or undertakes to bring about a violation, he oversteps. On the facts, recommending that the child be removed in violation of the other state's law could make the lawyer a motivating force and contravene DR 7-102(A)(7), whereas merely informing a client who had already decided on the course whether a violation would result, or what its consequences would be, would not be unethical.

The committee acknowledged the borderline between adequate legal advice and prohibited conduct is incapable of precise definition and must be assessed on each case's facts. It is the encouragement of illegal conduct that is proscribed, not the giving of advice as to what conduct may be illegal or a discussion of its consequences.

Currency note

This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the scope of representation and the bar on assisting crime or fraud are now governed by Rule 1.2(d), and misconduct by Rule 8.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer tell a client whether planned conduct is illegal in another state?

A: Under this opinion, yes. The committee held that advising a client of the legal character and consequences of an act, even one criminal at its situs, is the lawyer's proper function and not improper.

Q: Where is the line that a lawyer cannot cross?

A: The committee held the lawyer may not become a motivating force by encouraging the client to commit the act or undertaking to bring about a violation; that crosses into prohibited counseling under DR 7-102(A)(7).

Q: Which state's law decides whether the conduct is illegal?

A: The committee held that the situs of the act will ordinarily determine its legality, so conduct lawful in New York may still be one the lawyer cannot encourage if it would be a crime where it occurs.

Background and rules framework

The opinion applies Canon 7 with EC 7-5 and EC 7-22 (zealous representation within the bounds of law) and DR 7-102(A)(7) (no counseling or assisting conduct the lawyer knows to be illegal or fraudulent), reading "illegal" by the law of the situs and "counsel" as encouragement beyond mere advice. The current Model Rule analogues are Rule 1.2(d) (a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of proposed conduct) and Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation; counseling or assisting crime or fraud)
• MR 8.4 (misconduct)
• NY Canon 7; EC 7-5, EC 7-22; DR 7-102(A)(7)

Statutes:

• Penal Law section 135.45 (New York custodial interference)

Other opinions cited:

• N.Y. State 375 (1975): a lawyer may advise on the law of a jurisdiction to which he is not admitted if sufficiently knowledgeable

See also

• NY State Bar Op. 1024: Counseling clients under the medical marijuana law
• NY State Bar Op. 1011: Duty to remedy fraudulent visa submissions
• NY State Bar Op. 1106: Advising a criminal client on drug-treatment diversion

Source

• Landing page: https://nysba.org/opinion-455/