Many readers will recognize that phrase as the title of Stephen Pepper's classic article about the sometimes elusive boundary line of ethical lawyering on the topic of legal compliance. The article analyzes a hypothetical about discharge of pollutants that do not exceed the levels at which agencies are enforcing the environmental laws but which do exceed the letter of the law.
Quite a few law blogs are describing the current state of the healthcare law in similar ways. In response to public and political pressure, President Obama announced that for one year people could keep their legally non-compliant health insurance plans. Apparently, the insurance companies and some state regulators are reluctant to violate the express terms of the statute, which has not been amended. Under 1.2(d), it seems to me that a lawyer could still have a useful conversation with a client about the situation but would want to include a discussion about the plain terms of the statute. Exam question, anyone?
MR 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, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."
At Volokh, there is a disucssion of the issue in the context of corporate social responsibility.