by Suzanne Burke Spencer and Robert K. Sall

Orange County has found itself recently to be much in the national spotlight with well-publicized public protests of the COVID-19 related governmental lockdowns, shelter-at-home orders, and beach closures from San Clemente to Huntington Beach. On the day the authors started writing this article, Orange County reportedly experienced a daily record of fourteen deaths attributed to COVID-19. The same day, eight people were arrested in San Clemente related to an organized public protest of the fenced closure of the public parking lot at the Pier Bowl area.

The authors express no opinion on the political, social, or constitutional motivations for these protests, or their propriety when they involve violation of state or local government public safety measures, other laws, or orders. Whatever their perspective is on these matters, for lawyers, counseling or engaging in such civil disobedience raises significant ethical considerations.

Charges in connection with acts of civil disobedience may include trespass (Cal. Penal Code §§ 602, 602.8) and damaging or defacing public property (Cal. Penal Code § 594, Cal. Gov’t Code § 811.2)—standard fare in social protest movements—and in the case of COVID-19-related protests, violation of public health and safety orders (Cal. Health & Safety Code § 120295). Whether chaining yourself to a bulldozer to prevent an historic tree from being cut down, or blocking access to the trucks removing radioactive waste from a nuclear plant, acts of public protest involve real or potential violations of law that carry consequences.

Sometimes, a protest comes in the form of disobeying the rule of law itself. We see that in the case of the COVID-19 public safety measures and orders. Some chose to protest the orders by refusing to comply with them, whether by not staying at home or not closing their business, or refusing to wear masks when currently required. Others are engaged in bolder acts of removing barriers or damaging public property.

As lawyers, we are sometimes asked to advise regarding proposed actions that come close to the line or even cross the line into civil disobedience. What can we do or say? When does a lawyer cross the ethical line in guiding a client toward illegal conduct? May a lawyer ethically protest a rule or order by failing to comply with it? This article discusses some of the key ethical issues lawyers should consider before counseling or engaging in acts of civil disobedience.

Assume that an existing or potential client conveys to you his strong belief that the stay-at-home orders of state or county officials are unconstitutional, that he does not intend to comply, and seeks your advice as to how to challenge the law. For purposes of this discussion, we assume that disobeying the order of a public health official or state governor who is vested with proper authority is a violation of law.

What are the ethical limitations, if any, on lawyers’ ability to counsel clients engaged in civil disobedience?

The primary ethical rule applicable in the context of lawyers advising clients engaging in civil disobedience is Rule of Professional Conduct 1.2.1. That rule prohibits attorneys from counseling clients to engage, or assist clients, in “conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.” Cal. Rules of Prof’l Conduct R. 1.2.1(a). Notwithstanding this prohibition, the rule expressly permits lawyers to discuss the legal consequences of a client’s proposed course of conduct or counsel or assist the client in determining in good faith the “validity, scope, meaning, or application of a law, rule, or ruling of a tribunal.” Cal. Rules of Prof’l Conduct R. 1.2.1(b). The rule applies whether the client’s conduct is merely contemplated or has already begun and is continuing. Cal. Rules of Prof’l Conduct R. 1.2.1, comment [2]. Further illumination as to what lawyers may properly do without running afoul of the rule is found in the rule’s comments.

Those comments make clear that there is a “critical difference” between presenting a client with an analysis of the legality of questionable conduct and actually recommending the means by which to commit a crime or fraud with impunity. Cal. Rules of Prof’l Conduct R. 1.2.1, comment [1]. Presenting an analysis does not run afoul of the rule, while recommending the means for committing a crime obviously would. That said, “[t]he fact that a client uses the lawyer’s advice in the course of action that is criminal or fraudulent does not in and of itself make a lawyer a party to that course of conduct.” Cal. Rules of Prof’l Conduct R. 1.2.1, comment [1]. The line between mere analysis of the legality of proposed conduct and becoming a party to that conduct by recommending the means of committing a crime may blur.

Lines may blur even more when the counseling lawyer concludes in good faith that a law or rule is invalid. Under such circumstances, the lawyer may advise the client not only of the legal consequences of the proposed course of conduct or regarding the meaning, validity, scope or application of a law or rule, and the interpretation of it by governmental authorities, but also as to “legal procedures that may be invoked to obtain a determination of invalidity.” Cal. Rules of Prof’l Conduct, comment [3]. There would seem to be a very fine line between advising a client on how to get a determination of a law or rule’s invalidity, which could involve violating the law or rule in order to create standing to seek judicial review of it, and “recommending the means by which a crime or fraud might be committed with impunity,” which is still prohibited under the rule. See Cal. Rules of Prof’l Conduct R. 1.2.1, comment [1].

A lawyer’s advice to a client may be that one way to test the constitutionality of a rule or ordinance could be for the client first to violate it, and when charged, to raise a legal challenge to the ordinance itself. This would seem to constitute a permissible analysis of the legal procedures to determine invalidity. However, if the lawyer advises the client to intentionally violate the ordinance, or recommends the means of doing so, that is likely to cross the line into unethical conduct with potential disciplinary consequences.

Even if a client does not contend a law or rule is itself invalid or unjust, lawyers are authorized by subsection (b) of the rule to counsel the client on the consequences of violating the law or rule as a means of protesting a law or policy to which the client objects. Cal. Rules of Prof’l Conduct R. 1.2.1, comment [4]. The lawyer may, for example, advise the client of the differences between acts of peaceful protest or free speech versus throwing a brick through the window of a store that requires its patrons to wear a mask before entry. The lawyer may explain the criminal process and the procedures by which a law or policy may be tested, including the probable consequences. Permissible conduct does not extend, however, to recommending specific unlawful acts in which the client should engage to effectuate that protest.

Any conduct authorized by rule 1.2.1 is, nonetheless, delimited by the duty of client confidentiality, and the lawyer’s oath and duty to uphold the laws and Constitution. Cal. Rules of Prof’l Conduct R. 1.2.1, comment [2]. It would be appropriate, sometimes essential, to inform the client of the limitations on the lawyer’s ability to violate the law or recommend any violation of the law. If it appears that the client expects assistance from the lawyer that is not permitted or if the lawyer does not intend to follow the client’s instructions, the lawyer should advise the client of the limitations upon the lawyer’s conduct. Cal. Rules of Prof’l Conduct R. 1.2.1, comment [5]; and 1.4(a)(4). In some cases, a lawyer’s response may be limited to the right, and if appropriate, duty, to resign or withdraw from the representation under Rules of Professional Conduct 1.13 or 1.16. Cal. Rules of Prof’l Conduct R. 1.2.1, comment [2].

It would be appropriate also to discuss with the client the crime-fraud exception to attorney-client privilege. With limited exceptions, there is no attorneyclient privilege where the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud. Cal. Evid. Code § 956.

Are lawyers ethically permitted to engage in conduct that violates the COVID-19 orders?

Lawyers generally are prohibited from engaging in criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness, or fitness, or any other conduct involving moral turpitude, dishonesty, corruption, deceit, or fraud. Cal. Rules of Prof’l Conduct R. 8.4(b), (c); Cal. Bus. & Prof. Code § 6106. Conviction of a felony or misdemeanor involving moral turpitude is grounds for suspension or disbarment. Cal. Bus. & Prof. Code § 6101. Discipline, however, has also been imposed on lawyers for crimes that the State Bar Court found did not involve moral turpitude. See, e.g., Matter of Buckley, 1 Cal. State Bar Ct. Rptr. 201 (Rev. Dep’t 1990) (public reproval following conviction for misdemeanor solicitation of lewd act); Matter of Anderson, 2 Cal. State Bar Ct. Rptr. 208 (Rev. Dep’t 1992) (suspension following multiple drunk driving convictions); and Matter of Bouyer, 3 Cal. State Bar Ct. Rptr. 888 (Rev. Dep’t 1998) (suspension following conviction for failure to file employment tax reports). Such discipline may be imposed if the criminal conduct has a logical relationship to the attorney’s fitness to practice, such as respect for and obedience to the laws, and respect for the rights of others and for the judicial process. See In re Lesansky, 25 Cal. 4th 11, 14-15 (2001).

Lawyers are prohibited from engaging in conduct “prejudicial to the administration of justice.” Rules of Prof’l Conduct R. 8.4(d). The concerns of the State Bar and the courts in determining whether an attorney’s actions warrant discipline are to protect the public, the courts, and the integrity of the legal profession, and to preserve public trust in the profession. In re Kelley, 52 Cal. 3d 487, 493 (1990).

It is by no means clear that a lawyer’s conviction for criminal acts of civil disobedience will be free of disciplinary consequence. Lawyers undertake an oath and have a duty to support the constitutions and laws of the United States and of California. Cal. Bus. & Prof. Code §§ 6067, 6068(a). On the other hand, like all citizens, lawyers also have the First Amendment right of free speech, which may include engaging in civil disobedience. Nevertheless, the conviction of a lawyer for a willful act of trespass or knowingly causing damage to or defacing public property could well be found to have elements of moral turpitude or other misconduct and greatly increase the lawyer’s disciplinary risk.

Whether advising clients or engaging in their own forms of protest, lawyers should be mindful of their professional responsibilities and refrain from acts that weigh against the character and integrity of the legal profession, risk harm to the public, or injure the public trust.

Suzanne Burke Spencer and Robert K. Sall are shareholders in Sall Spencer Callas & Krueger in Laguna Beach practicing in civil litigation matters involving lawyer conduct, as well as ethics counseling for law firms and lawyers. They can be reached at sspencer@sallspencer.com and rsall@sallspencer.com, respectively.