California Mulls Ban on Revealing Immigration Status in Court

By Joyce E. Cutler

The San Francisco District Attorney wants the California State Bar to prohibit lawyers from disclosing a person’s immigration status in open court, which he says is necessary to combat a drop in crime reports by immigrants.

But the bar is considering less sweeping alternatives. A bar committee Jan. 19 rejected DA George Gascón’s proposal and instead recommended that the bar’s trustees consider three other options at their Jan. 27 meeting. “None of these options raise the kinds of separation of powers, constitutional or overbreadth concerns that Mr. Gascón’s proposed rule presents,” Andrew Dilworth, chair of the Committee on Professional Responsibility and Conduct (COPRAC), said in a report to trustees.

Gascón’s proposal raises concerns as to federalism, the separation of powers as between the courts and the legislature, the right to effective defense in criminal matters, and the First Amendment, the report said. The proposal may unduly deter the legitimate use of immigration status and raise litigation costs while increasing the burden on courts to hold in-camera hearings, Dilworth said.

And the proposal “is but a partial solution to the identified problem, because it only restrains attorneys from disclosing the immigration status of persons involved in the proceeding,” Dilworth said.

No New Ground

Gascón, former police chief of San Francisco, a sanctuary city, disputed the cost issue, saying that attorneys meet with judges in chambers or on the sidelines all the time. And there is precedent for his preferred approach, he told Bloomberg Law Jan. 22. “We’re not really establishing new ground,” he said, given a similar prohibition on asking rape victims about their sexual histories.

In 2013 Washington state adopted American Bar Association Model Rule 4.4, with a comment that prohibits a lawyer from raising or inquiring about a third party’s immigration status “when the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter.” Dilworth’s proposals urge the bar to follow suit.

Pending Legislation

Gascón’s proposal is incorporated in pending legislation ( S.B. 785) carried by state Sen. Scott Wiener (D, San Francisco). Senate Bill 785 prohibits disclosing a person’s immigration status without an in camera hearing. An individual or his attorney could voluntarily disclose his immigration status under the bill, which has the support of civil and immigrants’ rights groups. No opposition has yet been filed.

“I believe that it would be good to have both because they really cover different arenas, one by having clear legislation around this issue” and “having the bar also take action so there’s a clear path to discipline if people violate the bar rules,” Gascón told Bloomberg Law. “I don’t think one should replace the other.”

Public Protection

Immigrants’ fears are causing a drop in reported crimes, Gascón said in an August letter requesting the rule change.

Los Angeles Police Department recorded a 25 percent drop in sexual assault reports and 10 percent drop in domestic violence reports since the beginning of 2017, compared with the same period last year, Gascón wrote. San Francisco police said domestic violence reports dropped 18 percent among the Latino community and 29 percent among the city’s Asian community during the same period.

The committee applauded Gascón’s sentiment, despite its concerns about the workability of his proposal.

“I personally am very supportive of protection of our California immigrant population and I do really believe that the full board with the benefit of more time next week can fully explore the three options,” Jason P. Lee, trustees vice chairman, said during the Jan. 19 telephone committee meeting.

Alternate Means

The California Supreme Court is considering whether to adopt proposed Rule of Professional Conduct 8.4(d), which forbids conduct that’s prejudicial to the administration of justice. The court hasn’t said when or whether the proposed rules submitted last spring will be approved.

Under COPRAC’s first proposal, Rule 8.4(d) would include a comment prohibiting a lawyer from bringing up a person’s immigration status or threatening to report a person to immigration authorities “if the lawyer’s purpose is to intimidate, coerce, or obstruct that person.” The comment would be modeled on Comment [4] to Washington’s Rule 4.4(a).

The second option would be to adopt a version of ABA Model Rule 4.4(a), which prohibits lawyers from using means that have no other purpose than to embarrass, delay, or burden a third person—likewise with a comment modeled on Washington’s Rule 4.4(a), Comment [4].

The third alternative is to draft a comprehensive ethics opinion “making clear the current restraints on the improper use of immigration status, either under the current rules, or under the proposed rules once approved by the Supreme Court,” COPRAC’s recommendation said.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

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