California Bill to Report Attorney ‘Treason’ Gets Lawmakers’ Nod

California lawyers would be required to report other attorneys who they know participated in or planned to participate in acts of treason under the annual State Bar fee bill a legislative committee approved Tuesday.

The bill (SB 40) is a response to State Bar Court claims against Trump campaign lawyer John Eastman, who is charged with 11 breaches of ethical and statutory obligations in his role to help then-President Donald Trump undermine the 2020 presidential election results that culminated in the Jan. 6 raid on the US Capitol.

The legislation builds on a new Rule of Professional Conduct 8.3 that the California Supreme Court approved in June. California lawyers effective Aug. 1 are required to report other lawyers for misconduct as soon as the lawyer reasonably believes it won’t cause material prejudice or damage to the interests of a client of the offending lawyer’s firm.

“It is the law I would hope here soon that if an attorney sees another attorney who is attempting, for example, to thwart the peaceful transition of power, that that attorney would report,” said state Sen. Tom Umberg (D), bill author and Senate Judiciary Committee chairman.

Treason is defined in the federal code, which could be incorporated in the bill, Umberg said. “Whether or not Mr. Eastman committed treason or not is for others to judge,” he told the Assembly Judiciary Committee.

Eastman’s trial in the State Bar Court, which could result in the former Chapman University law professor being disbarred, resumes Aug. 22.

Chilling Attorneys

Committee Co-Chair Assemblymember Bill Essayli (R) said he was “worried we’re going down a slippery slope of controlling what lawyers can argue. I want zealous advocacy, I want our creative arguments because that’s how we change law in the United States.”

“I have a concern where if the government says, ‘hey, we’re acting in the public good, this is for the public interest,’ and lawyers are challenging this, is this now treason to go against your government?” Essayli said.

SB 40 passed the Assembly Judiciary Committee on a 8-3 vote and heads to the Assembly Appropriations Committee. The annual fee bill is how lawmakers exert control over lawyers by statute. The California Supreme Court regulates lawyer admission and discipline. This year’s bill would set the base license fee for active attorneys at $391.

The bill doesn’t require disclosing information otherwise protected by the attorney-client privilege or information gained by a licensee while participating in the attorney diversion and assistance program.

“If your client tells you they’re conspiring to overthrow the government, you’re not required to report that unless they indicate that they’re going to use violent means to do so,” Umberg said.

Exclusion Sought

Eastman, who is fighting the bar’s notice of discipline in a full-blown trial in State Bar Court, seeks to exclude evidence regarding the alleged conspiracy to create an alternative slate of electors in seven states. Eastman also claims attorney-client privilege with Trump, who, unlike the presidential campaign committee, hasn’t waived privilege.

“Because the State Bar did not charge Respondent with conspiring to bring about competing electoral slates or allege any facts to support such conduct in the NDC, the evidence is irrelevant,” Eastman argued in a motion.

The bar accuses Eastman of conspiring with Trump to disrupt the electoral count on Jan. 6 by pressuring former Vice President Mike Pence to violate the law and override every branch of government by throwing out votes. Counsel for Pence testified Eastman’s theories that the vice president could force the issue of competing slates of electors in a presidential election back to the state lacked legal or historical basis.

Bar prosecutors on Monday urged State Bar Court Judge Yvette D. Roland to deny the motion because the evidence is relevant to multiple charges.

The fake electors are a significant part of the strategy to conspire with Trump included in the first count against Eastman, who participated in recruiting the electors, the bar’s motion said.

Two other counts allege Eastman falsely stated there were dual slates of electors; the bar’s pretrial statement included the false electors; and prosecutors will introduce evidence that Eastman recruited the fake electors, the bar’s opposition said. Eastman’s claim the evidence is protected from disclosure is “overbroad, vague, and unsupported by relevant caselaw,” the bar said.

Eastman hasn’t been charged with any crimes related to the role he played leading up to the Jan. 6 attack on the US Capitol, but a federal judge in California held last year that Eastman and Trump “more likely than not” committed criminal conduct related to it.