Today’s post was authored by my partner, Richard M. Hunt.
Ethics Implications of Dobbs for law firm management and client counseling
The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization has triggered direct threats of prosecution directed to law firms that adopt policies aimed at providing abortions services to their staff. Those threats and coming legislation across the country raise important issues of professional responsibility for attorneys and firms whose conduct is perfectly legal in some states and arguably criminal in others. Firms need to consider those issues now so they can act to protect themselves and their clients from the possibly unexpected consequences of laws criminalizing abortion services.
The Problem – law firms are not just another kind of business.
Law firms across the country reacted to Dobbs v. Jackson Women’s Health Organization by announcing policies to help attorneys and staffers obtain abortion services that might be illegal in their home states. This has put attorneys on the front page of local and national newspapers and prompted threats against attorneys from opponents of legal abortion. These threats, like similar threats against other businesses, raise legal and constitutional issues concerning the full faith and credit clause, the commerce clause and extraterritorial jurisdiction, among others. Law firms also face the same practical concerns as other businesses trying to balance the need to attract and retain talented attorneys against client reactions to policies they may dislike. Unlike most businesses, law firms face an ethical concern as well; that is, do a firm’s policies and individual attorneys’ actions concerning reproductive rights violate rules of professional responsibility that may apply to them? The question is important because the polarized nature of the debate about reproductive rights makes it very likely that groups opposed to abortion will use disciplinary actions as part of their effort to punish those they see as promoting reproductive rights.
Crime and the Disciplinary Rules
One of these concerns arises from the treatment of many kinds of criminal activity as violations of legal ethics. A group of anti-reproductive rights politicians from Texas threatened Sidley Austin and its attorneys based on the group’s claim that Sidley Austin’s policies violated pre-Roe v. Wade Texas statutes that criminalized abortion and conduct facilitating abortion. The Texas Disciplinary Rules of Professional Conduct provide that an attorney shall not “commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” ABA Model Rule 8.4 is almost identical. Assuming for discussion purposes that law firms who assist employees in obtaining abortion services have committed a crime, is it a “serious crime” that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”?
Both the Model Rules and the Texas Rule make clear that not every felony is a “serious crime.” The comments to ABA Model Rule 8.4 suggest that the kinds of crime creating an ethical concern are “offenses [such as “violence, dishonesty, breach of trust, or serious interference with the administration of justice”] that indicate lack of those characteristics relevant to law practice.” The Texas Rule defines serious crimes that may be applicable as “any felony involving moral turpitude.” About 61% of the U.S. population lives in states where abortion is legal. Given this, does it make sense to say that laws criminalizing conduct that facilitates travel to a state where abortion is legal create a crime involving moral turpitude?
The opposite answer may seem just as obvious to those who oppose abortion, but even in Texas only about one-third of citizens agree that all abortions should be illegal. The same is undoubtedly true in other states with legislatures that have already broadened, or that are in the process of broadening, the range of abortion-related conduct that is made criminal. Because of the large number of states where abortion is legal, and because of the constitutional right to interstate travel which, as Justice Kavanaugh points out in his concurring opinion in Dobbs, would make unconstitutional any state law that would bar a resident of that state from traveling to another state to obtain an abortion, there is a persuasive argument that even in states where abortion is illegal, abortion-related crimes do not involve moral turpitude. Nonetheless, attorneys must recognize that ethical uncertainty may loom.
In the abortion arena, firms and attorneys with a multi-jurisdictional practice may have to confront claims of the unauthorized practice of law. The mobility of our modern legal practice creates issues concerning the unauthorized practice of law generally, but a state would not normally claim that an attorney in one state who provides advice to a client in another has engaged in the unauthorized practice of law. However, considering the current legal and emotional atmosphere surrounding abortion, advice across state lines concerning matters related to abortion may be seen by abortion opponents as an opportunity to file complaints based on the unauthorized practice of law.
Attorneys who need to appear pro hac vice in specific matters may face similar problems. Will conduct that is legal in the attorney’s state of licensure but illegal in the state where pro hac vice admission is sought preclude admission? Some courts, such as the US District Courts in Montana, already require any attorney seeking admission in a matter to submit, in writing, to the authority of the local bar as a condition to pro hac vice status. Will an attorney licensed in New York whose firm pays for abortion services find they are subject to discipline in Montana if they appear pro hac vice in a matter unrelated to abortion? How will other courts view a history of discipline based on this application of local law to an out-of-state attorney? Finally, what balance should courts strike between a client’s right to the attorney of their choice, which every state favors, and a single state’s desire to prohibit any conduct by an attorney that is alleged to facilitate abortion even if that conduct takes place outside the state?
Liability for Firm Policies and Procedures
Of course, ethics rules apply to individual attorneys, not to the business enterprises for which they work. ABA Model Rules 5.1 to 5.7, although titled “Law Firms and Associations” deal with obligations of attorneys with respect to the conduct of other attorneys or other individual non-attorneys within the firm, not the law firm as an entity. Model Rule 5.7 creates obligations concerning “law-related services” but the definition of “law-related services” does not extend to all the management and human resources activities of a firm. Depending on a firm’s governance even the firm’s owners may have no practical influence over a decision by the firm to assist attorneys and staff members with abortion services, and where that assistance is provided it is likely to be implemented by non-attorney staff members.
Individual criminal responsibility for the conduct of a business enterprise is not always easy to determine. It will be even harder to decide how to assign ethical responsibility for supposed crimes authorized by a few firm managers, especially if the firm practices in many jurisdictions. If the Texas-based members of a firm’s management committee vote against providing abortion-related services to the staff but the law firm’s management implements policies to provide those services, have the Texas-based attorneys engaged in an ethical violation by remaining associated with the firm? What if they vote for the policy but have nothing to do with its implementation? Where there is strong opposition to abortion in a state among those who make or enforce the laws, one cannot rule out the potential that an enforcement authority, including a state bar association, may test the limits of personal responsibility for firm policies related to abortion, perhaps even going so far as to attempt to treat the firm itself as a criminal enterprise.
Advising Clients on Abortion-Related Policies
The re-criminalization of abortion also has ethical implications beyond matters of firm governance. Businesses that have announced their intention to pay for abortion-related travel and services for their employees presumably did so after consulting their attorneys, including attorneys in the states where abortion has been criminalized. Some individuals will likely seek legal advice before making decisions about their own abortion or the abortion of a sibling, relative, friend, or spouse. Medical professionals and hospitals may need legal advice as well. In these cases, opponents of legal abortion might argue that one or more of the crime-related exceptions to Model Rule 1.6(b)’s protection of client confidences applies. These exceptions are not limited to crimes involving moral turpitude. In addition, some legislatures are already acting to redefine personhood to include an unborn child. That might trigger the confidentiality exception for preventing death or serious bodily harm under that same rule.
It is not difficult to imagine prosecutors seeking records of client communications related to abortion discussions and invoking one of the crime related exceptions to the confidentiality obligation or privilege to obtain those records. One response to protect client confidences might be the use of encrypted “disappearing” messages like that offered by Signaland other apps. Advice to clients might include taking steps to conceal or delete internet search history or social media messages. Law firms considering these steps must also consider the ethics rules potentially implicated in such conduct as well as evaluating whether criminal penalties for destroying or concealing evidence could be applicable.
Law firms must also consider the risk that individual attorneys might choose to expose client confidences because of their strongly held personal beliefs about abortion, and then defend their conduct by invoking one of the crime-related confidentiality exceptions. This risk can undermine the free flow of information within a law firm.
Firms and bar associations alike will also need to develop, within the applicable rules of professional conduct, policies to deal with client expectations of confidentiality when the communications relate to matters that might be criminal in one state but not in another.
The Duty to Report Professional Misconduct
A duty that affects attorneys in nearly every state is the attorney’s obligation to report professional misconduct by another attorney found in ABA Model Rule 8.3. There is usually little controversy about what kinds of professional misconduct trigger this reporting requirement—if one attorney views a particular behavior as a violation of the applicable code of professional responsibility, other well-informed attorneys are likely to agree. The polarizing nature of the abortion debate is likely to end this kind of widespread agreement about what is and is not ethical when it concerns abortion.
Now Is The Time To Address These Issues
Before Dobbs it would have been almost unimaginable that a national law firm would be threatened with criminal prosecution because of an internal policy related to the health of its employees. Today it is clear that attorneys and law firms who act in ways that are seen to support abortion rights may be targets for those opposing abortion rights. There are good reasons to argue that like other kinds of conduct that is criminal in some states but not others, prohibitions on abortion are not the kind of crimes that implicate ethical concerns. There are equally good reasons to argue that the territorial limits on the authority of state bars preclude action against foreign attorneys. Nonetheless, abortion is an issue so polarizing that it seems inevitable that attorneys whose firms implement policies to help attorneys and staff members seek legal abortions, or who advise clients on how to obtain or help others obtain legal abortions, will be subjected to claims of professional misconduct by someone. Such grievances will be a challenge for those who enforce disciplinary rules as well as for attorneys who see nothing wrong in advising clients on something that remains legal in 26 states as of the writing of this article. Responses to these risks are likely to be complex and involve matters of firm governance that transcend the views of an individual lawyer. Attorneys and law firms should be aware of the risks as they make decisions about providing abortion-related services to firm attorneys and employees and how they will advise clients seeking to understand what the law allows in a rapidly changing legal landscape.
© 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.