Will ‘Dobbs’ Advice Erode the Attorney-Client Privilege?

Employers are seeking legal advice in the wake of Dobbs about policies ensuring equal reproductive rights and access for their employees. In light of the Dobbs-driven state-specific regulatory paradigm, many of these policies feature travel reimbursement for employees working in jurisdictions that now ban and, in some circumstances, criminalize abortion.

An attorney’s ability to communicate, discuss, and weigh various legal options and consequences with clients fortifies our legal system. Without the expectation that these communications will be penalty-free confidential consultations, clients might be deprived of key information about how to conduct their legal matters. Corporate counsel’s role in this regard is no different from private practitioners, despite the single-client focus. Corporate clients rely heavily on corporate counsel’s facilitation of confidential legal advice, delivered without fear of consequences for the simple act of seeking that advice.

An important and long-standing exception to the attorney-client privilege, the crime-fraud exception, bears examination in the post-Dobbs world. The crime-fraud exception divests attorney-client privilege of confidentiality when a lawyer’s advice facilitates a client’s crime. The rapid movement by states to criminalize previously constitutionally-protected conduct may make some acts facilitating reproductive choice unlawful under criminal aiding and abetting theories. What’s more, some of these aiding and abetting theories may target lawyers for giving legal advice to those criminally charged.

The crime-fraud exception to attorney-client privilege therefore merits attention for counsel, who should consider the potential areas of risk and some mechanisms to protect the confidentiality of these communications.

The Crime-Fraud Exception Explained

Most communications between a lawyer and a client for purposes of giving legal advice are privileged against forced disclosure. But communications may fall under the “crime-fraud exception” to the attorney-client privilege if those communications are made by a client to a lawyer for purposes of committing or concealing a crime. The timing of the client’s intent in this regard is key. In New York, for example, a client’s intent to commit a future crime is not a protected confidence for purposes of the privilege. However, sharing a past offense or crime with a lawyer is a protected communication under the privilege. Whether a crime has been committed or will be committed is a fact question; but in light of the public policy promoting the liberal use of legal advice, courts are often reluctant to breach the privilege unless there is probable cause to believe that a crime has been committed and that the lawyer’s communication was made to further that crime.

Is Avoidance of Criminal Liability an Intent To Commit a Future Crime for Privilege Purposes?

The potential criminal liability arising from aiding and abetting reproductive rights through legal work for group health insurance plans is unsettled, even in light of potential state law preemption under the Employee Retirement Income Security Act (ERISA) ERISA may preempt state laws to the extent they purport to regulate certain group health plans. ERISA preemption does not apply, however, to state criminal laws of general application. Whether a law prohibiting abortion is one of general criminal application is not yet settled. As a result, if ERISA preemption does not apply to a reproductive rights travel benefits program, then the possibility of criminal liability is real. It is important for corporate counsel to understand and preserve the attorney-client privilege in the event a claim is made that corporate counsel facilitated criminal conduct by advising their corporate clients as to the manner and method of designing reproductive rights plans.

The crime-fraud exception to the attorney-client privilege depends on the content and context of the privileged communication. In the context of compliance with a post-Dobbs reproductive rights reimbursement plan, a client may, for example, consult with an attorney about how to comply with various state laws criminalizing abortion, the penalties for failure to comply with those laws, and the risks of adopting programs for their employees in jurisdictions that have criminalized aiding and abetting an abortion. Those communications should remain privileged if the client is seeking forward-looking advice about potential penalties and the legal way to avoid those penalties. If, however, the client asks the attorney for advice about how it could actually commit a crime—in other words, how the corporate client could actually procure an abortion for an individual—those communications could be subject to disclosure. Put more simply, the crime-fraud exception to the attorney-client privilege should not apply if the client is merely seeking advice about the consequences of some possible future action versus a roadmap as to how to break a law.

This distinction is important because waiver requires proof of the client’s intent to commit a crime. In this context, an employer’s request for advice, made for the purpose of compliance with various and ever-changing state criminal laws, is not the same as asking for advice with the present intent to commit a crime.

Insulating In-House Counsel From Liability

While the crime-fraud exception depends primarily on the client’s intent, in-house counsel may not be shielded from liability in this context. In other words, even if counsel was not aware of the client’s intent to skirt the law, in addition to being subject to disclosure, the attorney-client communications could form the basis for claimed criminal liability. While infrequently used, the murky law of conspiracy can be and in fact has been historically used in precisely this context. In 1947, a California court found an attorney liable for conspiracy to violate the law prohibiting abortions by counseling another member of the conspiracy to further its illegal purposes (i.e., to obtain an abortion). While it is difficult to imagine the same result (or charges) in this context, it illustrates the tremendous uncertainty underlying legal counseling in the post-Dobbs reproductive rights context.

How Corporate Counsel Can Avoid a Claim of Waiver (and Criminal Liability)

The role of in-house counsel is, of course, to give legal advice to their corporate clients about how to operate the business without triggering criminal or civil liability. While compliance inquiries are not new, the post-Dobbs compliance complexities are unique and may have a far-reaching impact. As a result, employers wishing to provide equal access to healthcare for their workforce, regardless of jurisdiction, must now do so against a backdrop of a patchwork of rapidly changing state criminalization that simply did not exist before Dobbs. In-house counsel are now being asked to guide their corporate clients regarding matters that could result in previously unprecedented charges of criminal liability.

For purposes of preserving the privilege in this context (and avoiding any claimed criminal conspiracy), there are steps in-house counsel should take. In-house counsel should not advise individual corporate employees how to seek out-of-state abortions in jurisdictions that criminalize aiding and abetting. Legal advice should be limited to advice sought by the corporation—the only entity to whom in-house counsel has ethical obligations as a client pursuant to the Rules of Professional Conduct—which obligations also preserve the privilege as to certain identified individuals who are authorized to seek legal advice. Off-the-cuff advice to corporate employees who do not have a role in creating employment policies should not, therefore, be included in communications regarding designing reproductive rights programs. In-house counsel should also make clear that any advice provided is given for compliance-related purposes—not to facilitate any particular medical procedure for particular employees or to provide a framework to aid and abet any particular reproductive decision. Finally, given that these issues are in flux and are the subject of multiple and vastly differing legal, philosophical and other approaches, there is no guarantee privilege will be respected. This may mean coupling Dobbs-related communications with a caution that some communications could be subject to disclosure.

Conclusion

The post-Dobbs landscape continues to bring new legal issues to light as employers explore policies ensuring equal reproductive access. In-house counsel should continue to monitor state laws when guiding corporate clients on constructing these health plans. In particular, in-house counsel should bear in mind that the crime-fraud exception could impact privileged communications, and they should tailor advice in a forward-looking manner so as to protect legal advice as best they can to support corporate clients in this new landscape of limited reproductive rights.

Reprinted with permission from the September 1, 2022 of CORPORATE COUNSEL © 2022 ALM, LLC. All rights reserved. Further duplication without permission is prohibited.

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