February 16th, 2023

THE DANGER FOR DEFENDANTS ON PROBATION
 
This submission will rely on CA’s state’s Business and Professions Code § 6068 et seq as a template. CA law does not apply to other states as they have their own Business and Professions Rules and State Bar rules. However, the spirit of the law is very similar throughout.
 
 
I’d like to address an exceedingly narrow population who will be hit by the increase in abortion bans and future criminalization; defendants on probation relying on their lawyers’ advice to ask if they can ask their probation officer to leave state to get treatment or find some manner to get treatment out of state while avoiding violation of probation and/or new criminal charges.
 
Criminal defendants represented by public defenders are advised to ask their lawyers for advice during the life of their case. When they are released on probation they are assigned a probation officer and must stipulate to many terms to release such as early evening curfew; sometimes ankle monitors, treatment program attendance, weekly or biweekly in-person drug testing, and other terms. In order to be exempt from one of these terms or to have an “excused absence”, defendants will need to proffer official documentation to their probation officer to leave state or miss a few drug testing appointments. Because of this defendants will go to their lawyer to ask for legal advice if they need to leave state for an abortion. As everybody knows, this necessitates a multiple day absence; impossible with ankle monitor and near impossible for those with curfews/random check ins. When defendants want to know if it is safe to tell their probation officers, they go to their lawyers because they are told that their conversations between their lawyers are protected under client confidentiality. We already know with the bounty hunter laws, anyone who knows about someone attempting “aids or abets” an abortion may sue. My concern is not with probation officers and other probation actors of the state knowing; it is specifically about the one person who defendants rely on to maintain their privacy; their counsel.
 
My argument is that *in the near future defendants will not even be able to ask their lawyers for advice about leaving state to get abortion care. As people all know most pro-life advocates are pushing for criminalization of abortion for both women and providers. https://www.reuters.com/world/us/louisiana-lawmakers-withdraw-bill-declaring-abortion-homicide-2022-05-13/
It is not a matter of if but when. I believe that lawyers should ready themselves for a reality where this is a huge issue for probation defendants, know how it may play out, and learn how to mount a defense for clients; a term colloquially called “impact litigation”.  Many legal scholars have written extensively about how in the world of criminal justice the cards are stacked against defendants especially low income and POC defendants and that even programs and persons assigned to help the defendant reintegrate are still to their detriment.
See “Carceral state” https://www.polisci.upenn.edu/sites/default/files/Law%20and%20Social%20Inquiry.pdf and https://columbialawreview.org/wp-content/uploads/2020/10/Ristroph-The_Curriculum_of_the_Carceral_State.pdf
Criminalization of abortion will make this divide even more transparent.
 
Once future states successfully pass laws criminalizing abortion, then this will trickle down right to private attorney client relations between probation defendants and their public defenders.
 
As of currently the ABA has an exception to client confidentially where lawyers “may” report to their state bar their client’s intent to “commit” a crime. In California jurisprudence the requirement for disclosure is discretionary not directory but reportedly in the following states: Arizona, Connecticut, Florida, Illinois, Nevada, New Jersey, New Mexico, North Dakota, Texas, Virginia, and Wisconsin counsel is required to reveal client confidential information to prevent the client from inflicting serious bodily harm or death upon a third party. https://www.sdap.org/wp-content/uploads/downloads/research/criminal/ethics2.pdf at pg 30
 
Assuming arguendo that this requirement to report is discretionary, prolife lawyers or lawyers who are afraid of sanctions/disciplinary actions by the state bar will report the defendant’s intent. For those who are dubious of my assertion, all must remember that many hospitals are actively shying away from/or outright refusing to treat miscarriages with no heart beat given that the first line treatment, D&C’s, are the same procedure used in elective abortions. I believe that there is nothing that distinguishes lawyers from being just as wary as doctors. With laws criminalizing abortion a probation defendant’s intent to seek treatment out of state will trigger this duty to report given that in these states abortion will be (1) a criminal act that (2) the lawyer can reasonably believe is likely to result in death of or lead to substantial bodily harm to, (3) an individual [the fetus]. The lawyer must report to the extent that the lawyer reasonably believes disclosure will prevent said criminal act which they believe is likely to result in death of or lead to substantial bodily harm to an individual.
 
Some may point out that there are clauses that allow the attorney to warn the client before they must disclose. This is true but again with there being pro-life lawyers out there and lawyers fearful of sanctions and discipline, they may not even consider the weight of this clause:
 
A lawyer shall, if reasonable under the circumstances: (1) make a good faith effort to persuade the client to not to commit or to continue the criminal act; or to pursue a different of conduct that will prevent the threatened death or substantial bodily harm (impossible if the woman is seeking to terminate the pregnancy which most are set in their decision), and to finally inform the client of the lawyer’s ability or decision to reveal [confidential communications] protected by Business and Professions Code section 6068, subd. (e)(1).
 
Many pro-life lawyers or lawyers or are bad faith lawyers will report and state that they reasonably believed that they were not able to “pursue” the woman to take a different course of action hence rendering the confidential communication with their defendants on probation moot.