Advice About Immunity: Ethical Conflict in Garcetti Advice-Giving

The legal distinction between advising and aiding clients has always been a difficult one. On one hand, it is obvious that legal advice-giving as conventionally understood simply would not occur if the distinction were not in place because attorneys would rightfully be afraid of being held complicit in the acts of their clients. The new Model Rule 1.2(d) noted that a lawyer may discuss the legal consequences of any proposed course of conduct and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. This note focuses on the immunizing effect that the Garcetti doctrine produces with respect to government superiors who fire their employees in direct retaliation for reporting corruption and misconduct in their offices. The assumptions about legal advice-giving that the Model Rules uses suggest that ethics rules implicitly have a substantive vision of law as something that is not a tool for aiding or assisting fraudulent conduct.