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A legislative committee in California has approved a bill that would mandate lawyers in the state to report fellow attorneys they know to have participated in or planned acts of treason. The bill, known as SB 40, was proposed in response to allegations against John Eastman, a lawyer for the Trump campaign, who faces charges of ethical and statutory breaches related to his involvement in efforts to undermine the 2020 presidential election results.
SB 40 builds upon a recently approved Rule of Professional Conduct 8.3, which requires California lawyers to report misconduct by other attorneys as long as it is believed that such reporting will not harm a client’s interests. The legislation aims to reinforce the obligation to report attorneys involved in treasonous activities, thereby promoting accountability within the legal profession.
State Senator Tom Umberg, the author of the bill and chairman of the Senate Judiciary Committee, emphasized the importance of attorneys reporting colleagues who may be attempting to obstruct the peaceful transition of power. He clarified that the determination of whether Eastman committed treason would be left to others, stating that the federal code’s definition of treason could potentially be incorporated into the bill.
The trial of John Eastman in the State Bar Court, which could result in his disbarment, is scheduled to resume later this year. However, concerns have been raised about the potential implications of the bill. Assemblymember Bill Essayli, the Committee Co-Chair, expressed worries about the erosion of lawyers’ ability to engage in zealous advocacy and creative arguments, which play a crucial role in shaping the law in the United States. He questioned whether challenging the government’s actions could be deemed treasonous, cautioning against a slippery slope of government control over legal arguments.
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The Assembly Judiciary Committee passed SB 40 with an 8-3 vote, sending it to the Assembly Appropriations Committee for further consideration. The bill is part of the annual fee bill that enables lawmakers to exert statutory control over lawyers, while the California Supreme Court handles lawyer admission and discipline. The proposed legislation establishes the base license fee for active attorneys at $391.
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It is important to note that the bill does not require the disclosure of information protected by attorney-client privilege nor includes information obtained while participating in the attorney diversion and assistance program. Senator Umberg clarified that attorneys are not obligated to report clients planning to overthrow the government unless the clients indicate an intention to use violent means.
John Eastman seeks to exclude evidence related to the alleged conspiracy to create an alternative slate of electors in seven states from his ongoing trial. He also claims attorney-client privilege with former President Donald Trump, who has not waived privilege unlike the presidential campaign committee. The State Bar accuses Eastman of conspiring with Trump to disrupt the electoral count on January 6, including pressuring former Vice President Mike Pence to violate the law. Bar prosecutors argue that the evidence is relevant to multiple charges against Eastman, citing his involvement in recruiting fake electors as a significant part of the strategy.
While Eastman has not faced criminal charges related to his role in the January 6 attack on the US Capitol, a federal judge in California previously stated that he and Trump “more likely than not” engaged in criminal conduct connected to the incident.
As SB 40 advances to the Assembly Appropriations Committee, its potential impact on the legal profession and the broader implications of requiring attorneys to report treasonous activities continue to be subjects of debate.
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