NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion #455 - 12/30/1976
Topic: Counseling violation of law of another state
Digest: Improper for lawyer to counsel or assist client in violating
law of another state
Code: Canon 7; EC 7-5, 7-22; DR 7-102(A)(7)
May a lawyer counsel a parent residing in New York with respect to
removing her child from the jurisdiction of another state wherein the
child resides with its other parent pursuant to a decree of custody made
by a court of that state?
Under the law of the state in question, it is kidnapping even for a
natural mother to interfere with the lawful custody of her minor child.
While such conduct if committed in New York State would not constitute
the crime of kidnapping, under certain circumstances, the same could be
deemed a class A misdemeanor. Penal Law, §135.45.
The relevant provisions of the Code of Professional Responsibility
are set forth in Canon 7 which enjoins lawyers to represent their
clients "zealously within the bounds of the law". Pursuant to this
injunction, EC 7-5 provides:
"A lawyer should never encourage or aid his client to commit criminal
acts or counsel his client on how to violate the law and avoid
EC 7-22 adds:
"Respect for judicial rulings is essential for the proper
administration of justice; however, a litigant or his lawyer may, in
good faith and within the framework of the law, take steps to test the
correctness of a ruling of a tribunal."
Finally, DR 7-102 states:
"A. In his representation of a client, a lawyer should not:
"7. Counsel or assist his client in conduct that the lawyer knows to
be illegal or fraudulent."
Our question requires an interpretation of the terms "illegal" and
"counsel" as employed by DR 7-102(A)(7). We first consider whether, in
the absence of some applicable principle of federal law, illegality
should be determined solely by reference to the substantive law of New
York or that of the situs of the proposed conduct. Next, we consider
whether the term "counsel" is intended to refer to something more than
the giving of legal advice.
We note that the Code has been adopted in essentially the same form
by 49 states, as well as the District of Columbia and reflects a
national consensus on what constitutes professional propriety. It is
intended to promote public confidence in the integrity of lawyers
throughout the United States in a manner consistent with the realities
of our federal system.
Under that system, it is commonplace, if not unavoidable, for lawyers
to advise their clients as to the law of jurisdictions to which they
have not been admitted; and, they may properly do this, provided they
have acquired sufficient knowledge of their subject. See, N.Y. State 375
While the legal consequence of any given course of conduct may vary
from state to state, the Code's admonition to lawyers that they refrain
from counseling their clients to violate the law contemplates that the
situs of the act will ordinarily determine its legality.
Whatever may be the law of the situs, however, giving legal advice,
in and of itself, cannot cast the lawyer in the role of one who counsels
or assists illegal conduct within the meaning of DR 7-102(A) (7).
Whether the situs jurisdiction defines a particular act as criminal or
otherwise, where the lawyer does no more than advise his client
concerning the legal character and consequences of the act, there can be
no professional impropriety. That is his proper function and fully
comports with the requirements of Canon 7.
But, where the lawyer becomes a motivating force by encouraging his
client to commit illegal acts or undertakes to bring about a violation
of law, he oversteps the bounds of propriety.
If, for example, the lawyer were to recommend that the child in
question be removed from the jurisdiction of another state in violation
of its law, he might well be considered a motivating force and his
"counsel" would then contravene the provisions of DR 7-102(A) (7).
However, if the client has determined to pursue this course of conduct
and merely wishes to be informed as to whether a violation of law would
result or what the consequences of that violation may be, it would not
be unethical to furnish the requested advice.
In the final analysis, professional propriety will be seen to depend
upon the often subtle interplay between the lawyer and his client. The
borderline between the giving of adequate legal advice and the
unprofessional conduct prohibited by DR 7-102(A)(7) is incapable of
precise definition. Each case must be viewed carefully in the light of
its facts and peculiar circumstances. It is the encouragement of illegal
conduct that is proscribed, not the mere giving of advice as to what
conduct may be deemed illegal or a discussion of its consequences.