Formal Opinion 2025-02: Ethical Responsibilities Related to Legal Immunity
SUMMARY
The Professional Ethics Committee issued a formal ethics opinion on the ethical responsibilities of lawyers who have, or who advise or assist clients who have, legal immunity. Lawyers may at times act in capacities in which they are, or they may be called upon to render legal services to clients who are immune from criminal prosecution and/or civil liability for certain acts. In such circumstances, lawyers or their clients may propose conduct that would subject them to criminal or civil liability but for their legal immunity. In so acting, and in representing such clients, lawyers must be mindful that they are “officer[s] of the legal system with special responsibility for the quality of justice.” In furtherance of those special responsibilities, the New York Rules of Professional Conduct forbid a lawyer from “counsel[ing] a client to engage, or assist[ing] a client, in conduct that the lawyer knows is illegal or fraudulent. . . .” A client’s illegal or fraudulent conduct does not cease to be “illegal or fraudulent” when the client-perpetrator is immune, no more than “dishonesty, fraud, deceit or misrepresentation” become honest actions merely because a lawyer cannot be legally liable for them. Therefore, the immunized status of a lawyer or client does not diminish the lawyer’s obligations as a lawyer to comply with the Rules.
REPORT
THE NEW YORK CITY BAR ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS
FORMAL OPINION 2025-02: ETHICAL RESPONSIBILITIES OF LAWYERS WHO HAVE, OR WHO ADVISE OR ASSIST CLIENTS WHO HAVE, LEGAL IMMUNITY
TOPIC: The duties and ethical responsibilities of lawyers who have, or who advise or assist clients who have, legal immunity.
DIGEST: Lawyers may at times act in capacities in which they are, or they may be called upon to render legal services to clients who are, immune from criminal prosecution and/or civil liability for certain acts. In such circumstances, lawyers or their clients may propose conduct that would subject them to criminal or civil liability but for their legal immunity. In so acting, and in representing such clients, lawyers must be mindful that they are “officer[s] of the legal system with special responsibility for the quality of justice.”[1] In furtherance of those special responsibilities, the New York Rules of Professional Conduct (the “Rules”) forbid a lawyer from “counsel[ing] a client to engage, or assist[ing] a client, in conduct that the lawyer knows is illegal or fraudulent. . . .”[2] The Rules also forbid lawyers, whether or not representing clients, from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation,” or “any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”[3] A client’s illegal or fraudulent conduct does not cease to be “illegal or fraudulent” when the client-perpetrator is immune, no more than “dishonesty, fraud, deceit or misrepresentation” become honest actions merely because a lawyer cannot be legally liable for them. Therefore, the immunized status of a lawyer or client does not diminish the lawyer’s obligations as a lawyer to comply with the Rules.
RULES: Preamble [1]; 1.2(d), (f); 1.4(a)(5); 1.6(b)(2), (3); 1.16(b)(1), (c)(2), (3); 3.3(b); 3.8(a); 4.1; 8.4
QUESTION: May lawyers deviate from the Rules when acting in their own behalf or when advising or assisting clients to engage in conduct that is illegal or fraudulent if they or their clients are immune from criminal and/or civil liability?
Introduction
It is a fundamental precept of professional ethics that lawyers must not participate in a client’s commission of a crime or fraud. “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent . . . .”[4] A lawyer, for example, is prohibited from “recommending the means by which a crime or fraud might be committed with impunity,” or “drafting or delivering documents that the lawyer knows are fraudulent or . . . suggesting how the wrongdoing might be concealed.”[5] Even if the client’s conduct is arguably legal, the lawyer may refuse to “aid or participate” in the conduct if the lawyer, in the exercise of professional judgment and discretion, believes it to be unlawful.[6] A lawyer may even disclose client confidential information “to the extent that lawyer reasonably believes necessary . . . to prevent the client from committing a crime.”[7] And finally, a lawyer “shall withdraw” from representing a client when the lawyer “knows or reasonably should know that the representation will result in a violation of . . . law,”[8] and may resign if “the client persists in course of conduct involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent” or “the client has used the lawyer’s services to perpetrate a crime or fraud.”[9]
Likewise, lawyers occupy a special role in our constitutional democracy with “special responsibility for the quality of justice” and as such they “should further the public’s understanding of and confidence in the rule of law and the justice system. . . .”[10] Therefore, independent of any client relationship, “[a] lawyer . . . shall not . . . engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer; . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation; . . . engage in conduct that is prejudicial to the administration of justice; . . . [or] engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”[11]
Persons enjoying legal immunity, be they a lawyer or the lawyer’s client, may not, under certain circumstances, be held liable for conduct that is criminal or fraudulent. However, neither the word “immunity” nor any of its derivatives appears in the Rules, Preambles or Comments. On their face, the Rules make no express distinction between crimes and frauds for which the lawyer or client may be prosecuted or sued, and those for which the lawyer or client is immune from legal liability. The question that animates this Opinion, therefore, is whether any such distinction is implied in the Rules.
For the reasons set forth below, we find no reason to imply such a limitation to the Rules. The existence of a legal immunity does not transform acts that are on their face illegal, fraudulent, dishonest or deceitful into innocent conduct. Legal immunity only insulates perpetrators from the legal consequences of their actions; legal immunity does not change the nature of the acts themselves. We therefore conclude that all lawyers who themselves engage in conduct that violates the Rules, or who counsel or assist clients to engage in illegal or fraudulent conduct—even those lawyers and clients who are themselves immune from legal liability for such conduct—may be disciplined for violating the Rules.
I. Immunities
This Opinion addresses those narrow situations in which a lawyer or client is immune from the legal consequences of their future illegal, fraudulent or otherwise violative conduct.[12] Only in such cases could a lawyer argue that, because of their or their client’s legal immunity, their conduct should not be deemed to violate the Rules. Without intending to limit the scope of this Opinion, such future-focused immunities exist to one degree or another for judges, prosecutors, legislators, diplomats and the President of the United States.
Judges and prosecutors enjoy absolute immunity from civil suits for actions performed in their official capacities. Judges may not be sued for how they conduct their proceedings or for what they say in court or in written court papers.[13] Nor can prosecutors be sued for what they say in court or write in court papers.[14] However, neither are immune from criminal liability, nor with respect to any actions outside their official duties as judges and prosecutors. For example, judges are not immune when performing administrative or executive functions for a court, and prosecutors are not immune for actions in connection with investigating a case, as compared to initiating and prosecuting a case in court. In both cases, the purpose of the immunity is to ensure that judges and prosecutors may perform their official duties without interference or intimidation.
Legislators enjoy immunity under federal and state constitutions to preserve the independence of the legislative branch. The United States Constitution provides that Senators and Representatives “be privileged from Arrest during their Attendance at the Session of their respective Houses . . . and for any Speech or Debate in either House, they shall not be questioned in any other Place.”[15] Under this Speech and Debate clause, statements made and documents offered in Congress may not be subjects of civil suit, and may not be entered into evidence in “any other Place.” However, criminal acts are not immune, and no immunity attaches to statements or documents, even if used in legislative debate, that are then also used outside of the legislative function—such as in press releases, political activity or private publications.[16] The New York State Constitution contains an analogous provision.[17]
Agents of foreign governments and their families ordinarily enjoy immunity from both civil and criminal actions, except to the extent waived by the diplomat’s home country. Diplomatic immunity is based in international treaties, which are treated with constitutional deference in the United States. The 1961 Vienna Convention on Diplomatic Relations, and the Diplomatic Relations Act of 1978 govern diplomatic immunity in the United States. While theoretically limited to official diplomatic activities, as a practical matter wide latitude is given both by law enforcement officers and civil courts to foreign diplomats and their families and staff to ensure not interfering with international relations.[18]
While diplomatic immunity rests on treaties and statutes, Presidential immunity rests on the Constitution itself. The U.S. Supreme Court recently held that Presidents may not be criminally prosecuted for acts that the Constitution delegates to their discretion.[19] The Supreme Court observed that when the President has been granted full discretion to act under the Constitution, then, the Constitution being the Supreme Law of the Land, Congress lacks power to limit that discretion by enacting impinging laws, including criminal statutes otherwise applicable. Presidential immunity for official acts within a president’s constitutionally granted discretion follows as a matter of course. Presidential immunity is perhaps the most absolute immunity that exists in our constitutional system.
II. Lawyers must not advise or assist in a client’s criminal or fraudulent conduct regardless of the client’s legal immunity for that conduct
We start with the observation, noted above, that the Rules make no express distinction between those lawyers and clients with legal immunity and those without. By the text of the Rules, the prohibition against lawyers advising or assisting in a client’s illegal or fraudulent conduct applies to all clients indiscriminately. Likewise Rule 8.4 applies to all lawyers without regard to their legal immunities. Thus, the question is whether there exists any reason why such distinctions should be implied.
Our review of the Rules, the Comments, the available disciplinary decisions and ethics opinions uncovered no precedent specifically addressing whether or not the Rules should be interpreted to make the prohibition against advising and assisting in a client’s illegal or fraudulent conduct or Rule 8.4 generally inapplicable with respect to clients and lawyers with legal immunity.
There are persuasive reasons, however, to find that no such implied modification to the Rules is warranted. The first and clearest is New York’s Penal Law:
In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person . . . it is no defense that:
* * *
-
- Such other person . . . has legal immunity from prosecution therefor . . . .[20]
Clearly, if a lawyer assisting in a crime could be held liable despite the client’s legal immunity, it would be incongruous if that same lawyer could not be professionally disciplined for advising or assisting that client in the same context.
This is consistent with prior opinions in which we and other ethics bodies have made it clear that a lawyer’s professional conduct is to be judged on its own merits, wholly independent from the status of the client or another third party. For example, a lawyer’s obligation to follow the Rules does not change because of the demands of a client, regardless how highly placed that client may be.[21] Such opinions rest on the principle that a lawyer’s obligations as a lawyer are separate and apart from the interests of clients. By the same logic, a lawyer’s obligations are also separate and apart from the status of the client, which would include the status of being legally immune.
Likewise, a lawyer’s obligations under the Rules as a lawyer must be deemed separate and apart from any status that the lawyer otherwise occupies. Reasonable persons, especially non-lawyers, will recognize illegal, fraudulent, dishonest and deceitful conduct as such regardless of whatever immunity the perpetrator might enjoy. Above and beyond the specific injunction against lawyers advising or assisting clients in their illegal or fraudulent conduct, lawyers have a “special responsibility for the quality of justice” as “officer[s] of the legal system”[22] That imposes on lawyers
a duty to uphold the legal process; to demonstrate respect for the legal system; to seek improvement of the law; and to promote access to the legal system and the administration of justice. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because, in a constitutional democracy, legal institutions depend on popular participation and support to maintain their authority.[23]
Therefore, Rule 4.1 expressly prohibits lawyers from “knowingly mak[ing] a false statement of fact or law to a third person.”[24] And, regardless of any client relationship at all, Rule 8.4 expressly prohibits lawyers from engaging in “illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer,”[25] “conduct involving dishonesty, fraud, deceit or misrepresentation,”[26] “conduct that is prejudicial to the administration of justice,”[27] and “any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”[28] Indeed, a lawyer advising or assisting a legally immune client to engage in illegal or fraudulent conduct is likely to run afoul of one or another of those general obligations. But more directly, a lawyer’s own legal immunity would not insulate from professional discipline a lawyer who himself or herself violates Rule 8.4.
These conclusions are perhaps best illustrated by considering the disbarment of former President Richard M. Nixon. President Nixon was a member of the New York Bar and in 1976 was disciplined for obstructing, as President, investigations into the Watergate break-in by his own Department of Justice and other Executive Branch agents. His activities were arguably within his Constitutional powers to control the scope of prosecutorial activity.[29] Moreover, President Gerald R. Ford had pardoned Nixon for all such conduct over a year earlier,[30] so it could be said that Nixon was by then twice immune. None of that mattered to the Appellate Division panel that disbarred him.
The court acknowledged that “while Mr. Nixon was holding public office he was not acting in his capacity as an attorney.” In so acknowledging, the court drew a clear distinction between his obligations as a lawyer and whatever other duties or prerogatives of high office he simultaneously held. In ruling Nixon disbarred, the court then emphasized that “the power of the court to discipline an attorney extends to misconduct other than professional malfeasance when such conduct reflects adversely upon the legal profession and is not in accordance with the high standards imposed upon members of the Bar.”[31]
On its own facts, the Nixon decision teaches that the ethical duties of a lawyer are independent of whatever other privileges that lawyer may enjoy in another sphere. President Nixon was disbarred as a lawyer for engaging in the very same conduct for which he could not be prosecuted. [32] But more than that, the Nixon decision fully supports the essential conclusion of this Opinion, that the conduct of a lawyer as a lawyer stands apart from any other considerations affecting that conduct—including any legal immunities that may apply to such conduct, and regardless of whether any such immunity is enjoyed by the client or by the lawyer.
Conclusion
Are acts still “illegal” or “fraudulent” or “dishonest” or “deceitful” for purposes of the Rules if the perpetrator cannot otherwise be held legally liable for them? We conclude that the answer is “yes.” The Rules make no special allowance for lawyers or clients with legal immunity. Illegal or fraudulent conduct remains so even when the client is immune, and a lawyer may be disciplined for advising or assisting in such client’s acts. Likewise, conduct that adversely reflects on a lawyer’s fitness as a lawyer, including those detailed in Rule 8.4, does not become less so if the lawyer has legal immunity for them. That is the lesson of the Nixon case. Lawyers must always act according to the Rules, both on their own behalf and when on behalf of a client. That they or their client are legally immune implies no exceptions to that overarching principle.
Footnotes
[1] N.Y. Rules of Prof’l Conduct, Preamble [1].
[2] Id., R. 1.2(d).
[3] Id., R. 8.4(c), (h) (emphasis added).
[4] Id. R. 1.2(d) (emphasis added).
[5] Id., R. 1.2 Comments [9], [10].
[6] Id., R. 1.2(f) and Comment [15].
[7] Id., R. 1.6(b)(2).
[8] Id., R. 1.16(b)(1).
[9] Id., R, 1.16(c)(2) and (3).
[10] Id., Preamble [1].
[11] Id., R. 8.4(b), (c), (d), and (h).
[12] The most common form of immunity is that accorded to cooperating witnesses in criminal cases. Prosecutors generally offer immunity to certain criminal actors in order to procure testimony against co-actors. A similar form of immunity occurs when a person is given an executive pardon. In both instances, such immunities are limited to past conduct; the perpetrator would not have been immune when he or she engaged in the illegal conduct. Any lawyer who counseled or assisted in such conduct would clearly have violated the Rules. This Opinion does not address those cases.
[13] Dieujuste v. Sin, 125 F.4th 397 (2d Cir. 2025) (concerning a New York State Family Court Judge); Kelsey v. Catena, 217 A.D.3d 1233 (3d Dep’t 2023).
[14] Rodrigues v. City of New York, 193 A.D.2d 79 (1st Dep’t 1993).
[15] U.S. Const. art. I, § 6, cl. 1. The official commentary observes that the privilege does not encompass criminal offenses, but that “Members are only privileged from arrests arising from civil suits, which were common in America at the time the Constitution was ratified.” See https://www.govinfo.gov/content/pkg/GPO-CONAN-2022/pdf/GPO-CONAN-2022.pdf, at p. 273. (All websites last accessed on June 11, 2025).
[16] Gravel v. United States, 408 U.S. 606 (1972).
[17] N.Y. Const., art. III, § 11.
[18] See generally, U.S. Dept. of State, Diplomatic and Counselor Immunity: Guidance for Law Enforcement and Judicial Authorities, available at https://www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf.
[19] Trump v. United States, 603 U.S. 593 (2024).
[20] N.Y. Penal Law § 20.05.
[21] N.Y.C. Bar Ass’n Formal Op. 2025-1, Ethical Obligations of Lawyers Representing Government Officers and Agencies (Apr. 4, 2025) (lawyers must comply with the Rules regardless of client demands).
[22] N.Y. Rules of Prof’l Conduct, Preamble [1].
[23] Id.
[24] Id., R. 4.1.
[25] Id., R. 8.4(b).
[26] Id., R. 8.4(c).
[27] Id., R. 8.4(d).
[28] Id., R. 8.4(h).
[29] See Trump v. United States, 603 U.S. at 619-21.
[30] Proclamation 4311, Granting Pardon to Richard Nixon (Sept. 8, 1974), available at https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg2502.pdf.
[31] Matter of Nixon, 53 A.D.2d 178, 181-82 (1st Dep’t 1976), citing Matter of Dolphin, 240 N.Y. 89, 92-93 (1925), and Matter of Kaufman, 29 A.D.2d 298 (1st Dep’t 1968).
[32] Although he did not have legal immunity, it should also be noted that President William Clinton was suspended from practice in the State of Arkansas for violating its version of Rule 8.4(d) by lying under oath in a deposition about his relationship with Monica Lewinsky. See Neal v. Clinton, No. 2000-5677 (Cir. Ct. Pulaski Cty.) (Jan. 19, 2001) (slip op.), available at https://www.arcourts.gov/sites/default/files/opc_opinions/2000-013.pdf. President Clinton had been granted summary judgment in the case in which the deposition was held; the trial court had held that the perjured testimony was not material to the outcome of the case; and he had been impeached but acquitted for the same conduct. None of that mattered. The court prefaced its ruling by stating, “The conduct at issue here does not arise out of Mr. Clinton’s practice of law. At all times material to this case, Mr. Clinton resided in Washington, D.C., but he remained subject to the Model Rules of Professional Conduct for the State of Arkansas.” Id. at p. 1. In the end, President Clinton consented to a five-year suspension for having “violated Model Rule 8.4(d) . . . [which] states that it is professional misconduct for a lawyer to ‘engage in conduct that is prejudicial to the administration of justice.’” Id. at p. 4. President Clinton was also suspended from practicing in United States Supreme Court. Matter of Discipline of Bill Clinton, 534 U.S. 806, 122 S. Ct. 36 (mem.) (2001).