Most lawyers don’t have a crystal ball sitting on their desk. But every lawyer should know the signs that suggest something might be off about a client and understand their duty to investigate under the applicable ethics guidelines.

Unfortunately, some individuals do engage with legal professionals to defraud institutions, commit crimes or launder money. Lawyers are held to high standards and the consequences of participating in a client’s illegal or unethical behavior can be serious. Even representations where you only suspect something could be wrong can lead to an ethics violation, an insurance claim or worse.

Here’s what to know.

Recent Opinion Tackles Willful Blindness

In 2021, the Colorado Bar Association Ethics Committee adopted Formal Opinion 142, concerning a lawyer’s duty when a client is seeking advice on a transactional matter that may be criminal or fraudulent.

The opinion is notable for its level of detail as well as its divergence from past rules addressing the topic, the most notable being the ABA’s Opinion 491.

According to Colorado’s Rule 1.2(d), a lawyer:

“shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…” 1

Opinion 142 carefully addresses the question what happens when a lawyer suspects illicit conduct but does not have “actual knowledge” of it.

In Colorado Rule 1.0(f), the term “know” is said to denote “actual knowledge of the fact in question.” However, in Opinion 142, the Committee interprets the actual knowledge standard to include “willful blindness,” adopting the U.S. Supreme Court’s definition of that term:

“[A] lawyer is willfully blind when she (1) subjectively believes that there is a high probability that a fact exists; and (2) takes deliberate actions to avoid learning that fact.” 2

Opinion 142 is also notable for acknowledging the difficulty in discerning the difference between what a lawyer “reasonably should know” and that to which the lawyer is “willfully blind,” with the Committee determining that willful blindness should be measured at the time of the lawyer’s determination and not after the fact:

“[A] lawyer is not deemed to ‘know’ either facts or the significance of facts that only become evident with the benefit of hindsight.”

Further, Opinion 142 calls attention to four key elements of a lawyer’s duty to inquire:

  • A lawyer only has an ethical duty to inquire when the lawyer has “actual knowledge” of facts that are obvious indicators of the client’s intent to use the lawyer to facilitate a criminal or fraudulent act.
  • When a lawyer’s ethical duty to inquire does apply, due to a lawyer having such “actual knowledge” of indicative facts, the lawyer has a duty to confirm or dispel the suspicions.
  • A lawyer who intentionally fails to conduct such an inquiry under these circumstances would be considered willfully blind and would be chargeable with knowledge for purposes of Colorado Rule 1.2(d).
  • A lawyer who provides legal services when the lawyer knows (or is willfully blind to the fact) that those services will be used for criminal or fraudulent purposes risks serious consequences, including ethical sanctioning, civil liability or criminal prosecution.

By interpreting a lawyer’s duty to inquire to specifically include willful blindness yet limiting that obligation to actual facts which are knowable, Opinion 142 diverges from previous opinions. The Committee notes that it:

“parts ways with ABA Opinion 491 with respect to the ABA’s determination that the duty to inquire extends to every situation where a lawyer should know of the client’s improper use of a lawyer’s service.”

Colorado is also not the first jurisdiction to weigh in on the question. The bars of Indiana, California and New York City have also examined the duty to inquire.3

Risk Mitigation of the Duty to Inquire

As a lawyer, your conduct is held to a high standard and playing a role in a client’s illegal or unethical activities carries significant risk. Outcomes including license suspension, disbarment, civil penalties and criminal prosecution are all possible, depending on the circumstances.

To fully mitigate the risk, a comprehensive approach is needed.

First, lawyers need to know the laws and rules that apply in their jurisdiction. Thankfully, no crystal ball is needed to obtain this knowledge. Consult the professional conduct rules of your state as well as any applicable federal, state and local statutes to find out the specifics of your duty to inquire.

Secondly, lawyers need to comply with applicable laws and rules of conduct. Risks can be greatly reduced with the right approach to your professional obligations. Don’t be willfully blind. Instead, investigate suspicions when you have them and avoid unethical representations.

Finally, lawyers need to be proactive in their approach to risk management. A comprehensive malpractice insurance policy can offer protection from the risk of facing an ethics complaint alone. Plus, risk management resources, like those available from Lockton Affinity Lawyer, can help you prevent a claim before it happens.

To learn more, visit or call (844) 398-0465.


  1. The ABA’s Model Rule 1.2(d) contains the same provision.
  2. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011).
  3. See Indiana State Bar Association Opinion No. 2 for 2001, State Bar of California Formal Opinion 1996-146 , and New York City Bar Formal Opinion 2018-4.