Protective laws needed for reproductive justice lawyers in California

The Overarching Reproductive Law Project (ORLP) has initiated a significant proposal aimed at codifying protections for California attorneys who engage in reproductive justice work that may violate punitive laws in other states. The proposed legislation addresses the ethical dilemmas facing California lawyers who help women in restrictive states get the health care they need in states where it is legal, including in California, whose constitution establishes a fundamental right to abortion.

ORLP, with the backing of the Women Lawyers Association of Los Angeles (WLALA), reacted quickly after the Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization eliminated the federal constitutional right to privacy guaranteeing the right to choose abortion. Aware that many other states would severely restrict or entirely ban abortion care, ORLP sought ethical guidance from the California State Bar. As a direct result of ORLP's advocacy, the State Bar's Committee on Professional Responsibility and Conduct (COPRAC) is now considering drafting an ethics opinion on the issues ORLP identified.

ORLP has already influenced the new Rule of Professional Conduct 8.3 with WLALA, the Center on Reproductive Health, Law, and Policy, the Southern California Legal Alliance for Reproductive Justice, and the San Francisco Legal Alliance for Reproductive Rights. ORLP identified a problem in the so-called mandatory reporting rule during its development stage: mandatory reporting of misconduct could have an unintentional chilling effect on reproductive justice work because conduct that is legal in California may violate "aiding and abetting" laws in other states. When the committee drafting the new rule solicited public comment, ORLP, and its sister organizations sent communications to the State Bar identifying this key defect in the mandatory reporting rule and advocating for a carve-out that protects conduct that is legal in California. The resulting subsection (c) shields California attorneys from mandatory reporting of activities that may violate criminal laws in other jurisdictions: 8.3(c) For purposes of this rule, "criminal act" as used in paragraph (a) excludes conduct that would be a criminal act in another state, United States territory, or foreign jurisdiction, but would not be a criminal act in California. While Rule 8.3(c) protects attorneys working in the national reproductive justice space from mandatory reporting, it does not protect those attorneys from voluntary reporting.

ORLP's work continues. California lawyers remain vulnerable to reciprocal discipline if they are members of more than one state bar. California law provides that a final order of discipline in any state is conclusive evidence that the lawyer is culpable of professional misconduct in California, and requires a lawyer disciplined elsewhere to report that discipline to the California bar and undergo an expedited disciplinary hearing. (Bus. & Prof. Code sections 6049.1, 6068). Requiring a lawyer to undergo a disciplinary hearing at which the lawyer bears the burden of proof creates a chilling effect, despite the available affirmative defense that the lawyer's conduct would not lead to discipline in California. This highlights a unique problem on the fault line of reproductive justice and gender-affirming care, given the wildly different and constantly changing state laws on the books as to what is "legal" conduct. One can imagine a scenario where an attorney who is a member of the State Bar of California, and also the State Bar of Texas, could be forced to defend themselves in a California disciplinary proceeding for activities prohibited in Texas that are well within the laws of California.

ORLP and its sister groups have meticulously drafted a proposed amendment to the statute after extensive research and deliberation. We have now begun the critical task of securing legislative sponsorship to advance the proposed amendment into law, and have commenced discussions with lawmakers. California has enacted shield laws to protect California doctors and other health workers who provide essential reproductive health care to women from punishment by states restricting or banning abortion. California lawyers deserve the same protection when they work to ensure that women receive the health care they need. The proposed amendment has already garnered attention within legal circles, with many expressing support. The amendment will lessen the chilling effect on reproductive justice work by California attorneys, ultimately benefiting both legal practitioners and the public. The outcome of this endeavor will have far-reaching implications for the ethical landscape of the legal profession, the administration of justice, and the fundamental rights of pregnant people.

ORLP was co-founded by California State Bar members I'niah Clark, Jenna Karvunidis, and Christy Thomas when they were student leaders at Southwestern Law School.