Advising clients after “Dobbs”: is it legal advice or help and encouragement?

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As we enter an era where some states are criminalizing health choices, the impact here in Pennsylvania remains unclear. Although Pennsylvania hasn’t crossed that precipice, we are one election away from potentially joining Texas, Louisiana, Mississippi and other states in their race to overturn women’s constitutional right to privacy and criminalize sex. access to abortions.

Even if that doesn’t happen, Pennsylvania attorneys may be asked to advise clients on the tension between states that provide reproductive care and those that prohibit seeking and providing care or helping those in need. . As lawyers, what advice can we give without crossing the line into illegal complicity? In our discussion, we do not provide definitive answers. At this inflection point in our history, we have only possibilities and questions.

As frequently happens in new ethical dilemmas, several rules are involved. These include RPC 1.2, as well as RPC 1.6, the duty of confidentiality, and RPC 1.16(a) the duty to take down. The crime-fraud exception to attorney-client privilege will also be in play. In discussing the scenarios that may arise and the ethics rules that apply to them, we focus here on RPC 1.2 and 1.6, and leave a discussion more complete on RPC 1.16 and other rules for another day. Just be aware that Rule 1.16 may apply to require the removal of a client’s representation, if “the representation will result in a breach of professional ethics or other law.”

We begin with Ethical Rule 1.2, titled “Scope of Representation and Distribution of Authority Between Client and Lawyer”. This rule allows a lawyer to limit their representation of a client, but also guides the lawyer whose client consults lawyers about potentially illegal behavior.

Rule of Ethics 1.2 (d) and (e)

Pennsylvania Rule of Professional Conduct (PRC) 1.2(d) states in the relevant part:

● A lawyer should not advise a client to engage in or assist a client to engage in conduct that he or she knows to be criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of action with a client and may advise or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

PRPC 1.2 (e) states:

● An attorney may advise or assist a client regarding conduct expressly authorized by Pennsylvania law, provided that the attorney advises the client of the legal consequences, under other applicable law, of the course of action proposed by the customer.

These provisions raise several questions, including: Can a Pennsylvania lawyer tell a Texas client that abortion is illegal in Texas but legal in Pennsylvania? Can the attorney provide the Texas client with information about organizations, such as Planned Parenthood, to help the client? Can the lawyer put the client in touch with organizations to provide advice?

Commentary 9 of the Rule provides some help: “There is a critical distinction between presenting an analysis of the legal aspects of questionable conduct and recommending the means by which a crime or fraud could be committed with impunity. A client and an attorney can “sit as long as they want to discuss what would happen if the client took this or that course of action” because contemplation is not prohibited; the action is. Roy D, Simon, Simon’s Rules of Professional Conduct paragraph 1.2:21 (2022). But a lawyer must be careful. If the lawyer knows that the client has agreed to commit an illegal act, the lawyer cannot escape potential liability by consciously avoiding it. See RPC 1.4(5) (a lawyer must “consult with the client about any relevant restriction on the lawyer’s conduct when he knows that the client expects assistance not authorized by the Rules or another law” .)

The provision of s. 1.2(d) of the CPR that the lawyer “may advise or assist a client in making good faith efforts to determine the validity, scope, meaning or application of the law” is also important. Some laws criminalizing health-related services may be subject to legal challenges. A law that purports to criminalize travel across state lines to obtain health care in another state could be struck down because it violates both the Equal Protection Clause and the Commerce Clause. This way, the attorney can explain potential challenges to the laws and help pursue those challenges.

RPC 1.6, Confidentiality and Duty of Disclosure

There are also implications for the lawyer’s duty of confidentiality to his client. While the duty of confidentiality described in Rule 1.6 is much broader than solicitor-client privilege, all states have exceptions to this duty. Most states have an exception that allows, but does not require, an attorney to reveal information relating to the client’s representation in order to “prevent a reasonably certain death or substantial bodily harm.” Some states have a permissive “client intent to commit a crime” exception. However, several states, including those that have or will ban abortion-related services, require an attorney to reveal confidential information in such circumstances. These include Texas, Florida, Arizona and North Dakota.

In Pennsylvania, RPC 1.6(c) permits, but does not require, disclosure of information that could cause significant physical or financial harm to a third party. However, be aware that if a lawyer is advising a client in another jurisdiction, the ethical rules of that jurisdiction may apply. When advising people in other states, be sure to read both the relevant criminal laws and the ethics rules.

The Criminal Fraud Exception to Solicitor-Client Privilege

Another consideration is whether the attorney can be subpoenaed to provide client communications information to a court. This issue involves the crime fraud exception to solicitor-client privilege. “A party seeking to apply the criminal fraud exception must demonstrate that there is a reasonable basis to suspect that the [lawyer or client] was committing or intending to commit a crime or fraud, and that the attorney’s work product was used in the prosecution of that alleged crime or fraud. See In re Grand Jury Matter, 847 F.3d 157, 165 (3d Cir. 2017). The rationale for the exception is that the misuse of the attorney’s advice vitiates the sanctity of the attorney-client relationship. For example, if the client seeks advice on whether a subpoena covers certain documents and then destroys those documents, the criminal fraud exception will apply. See In re grand jury investigation445 F.3d 266, 274 (3d Cir. 2006).

The question is, if a Pennsylvania attorney tells a Texas client that abortion is legal in Pennsylvania and that client goes to Pennsylvania for an abortion, will the attorney have to disclose that advice and the discussions that led to it? What measures should the lawyer take to preserve the confidences of his clients? Commentary 21 to Rule 1.6 states that “absent the informed consent of the client to do otherwise”, a lawyer ordered to disclose a client’s confidences “shall assert all non-frivolous claims that the order is not authorized by law or that the information sought is protected from disclosure.

Faced with the difficulties of navigation on this territory, we can only provide these limited precautions to protect your freedom and your license:

● Know the criminal laws, ethics rules and opinions of your jurisdiction and your client’s jurisdiction.

● The distinction between ethical and illegal conduct may depend on the extent of the information provided when advising the client and the specific request of the client. Lawyers advising doctors and patients should work with an ethics counselor to determine the ethical boundaries of their advice.

● Be sure to memorize or obtain written advice from your ethics counsellor; After a counseling session, memorize the interaction with your client, including what you said to them.

As ethics lawyers, we often operate in gray areas where reasonable minds may differ. While some conduct is strictly prohibited and some is strictly required, in the middle we enter into uncertainty. No matter where you are on the political spectrum, as lawyers we can question, challenge, protest and seek to change the law: but we must also work, to the best of our ability, within it.

Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, considerate and efficient assistance. She served as an assistant federal defender in Philadelphia and practiced at small, medium and large corporations with a focus on criminal defense, appeals defense, professional liability and ethics.

Ellen Yaroshefsky is the Howard Lichtenstein Professor of Legal Ethics and Director of the Monroe Freedman Institute for the Study of Legal Ethics at Hofstra University’s Maurice A. Deane School of Law. She teaches courses in ethics and criminal procedure, and writes and lectures in the area of ​​legal ethics with a focus on issues in the criminal justice system.

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