The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
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.
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.
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.”
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.
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  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 .
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 email@example.com
The propsals are at http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000021312.pdf. S.B. 785 language is at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB785.
Copyright © 2018 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)