The State of Lawyer Knowledge Under the Model Rules of Professional Conduct
American University Business Law Review
UVA Law Faculty Affiliations
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.
George M. Cohen, The State of Lawyer Knowledge Under the Model Rules of Professional Conduct, 3 American University Business Law Review 115-148 (2014).