The State of Lawyer Knowledge Under the Model Rules of Professional Conduct

34 Pages Posted: 23 Apr 2018 Last revised: 12 Jul 2018

See all articles by George M. Cohen

George M. Cohen

University of Virginia School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2014

Abstract

I will argue in this Article that the Model Rules should be revised to answer these three related questions and thereby provide clearer guidance to lawyers. First, the Model Rules should expressly incorporate recklessness into the definition of "knowledge" or at least should expressly incorporate this standard whenever a duty to inquire or a duty to communicate otherwise exists under the rules or other law. Second, one way to show recklessness or willful blindness is through a deliberate breach of an otherwise existing duty to inquire. The knowledge requirement should not be interpreted to negate or limit duties of inquiry that otherwise exist. Third, like inquiry, communication is an important means by which lawyers acquire knowledge, and just as lawyers in many situations have duties to inquire, they also often have duties to communicate. The duty to communicate is the basis for rules of imputation. Thus, just as the knowledge standard should not be used to negate otherwise existing duties to investigate, neither should it be used to negate otherwise existing duties to communicate, and thereby defeat imputation.

Keywords: Model Rules, professional conduct, ethics, transactional law

Suggested Citation

Cohen, George M., The State of Lawyer Knowledge Under the Model Rules of Professional Conduct (2014). American University Business Law Review, Vol. 3, No. 1, 2014, Available at SSRN: https://ssrn.com/abstract=3155954

George M. Cohen (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
(804) 924-3814 (Phone)
(804) 982-2079 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
14
Abstract Views
257
PlumX Metrics