The recent threatening letter written by the Texas legislature’s Freedom Caucus to the global law firm of Sidley Austin has coupled the state’s war on women with an equally dangerous attack on the state’s legal profession.
In the wake of the Supreme Court’s decision to overturn Roe v. Wade, Sidley reportedly told its employees that the firm would provide assistance for abortions and related travel expenses. Several other large law firms with offices in Texas have promised similar protections.
In a letter to Sidley’s Managing Partner that was both chilling and combative, the Freedom Caucus alleged violations of various statutes, including a 1925 law that remained on the books throughout the 49 years that Roe and Casey controlled the parameters of the right to abortion. The letter warned that the firm and each of its partners would be subject to criminal penalties and disbarment.
Alarmingly, the Freedom Caucus letter then described a bill that it intends to introduce in the next legislative session, criminalizing additional abortion-related conduct, whether committed by a law firm or a corporation. This legislation would echo the vigilante-style bounties provided by the Texas Heartbeat Bill, which allows civil suits to be filed by individuals against anyone alleged to have aided an abortion in any manner. The proposed bill would eliminate the statute of limitations on any abortion-related crime, and empower any district attorney in Texas to prosecute when a local district attorney fails or refuses to do so.
The letter – importantly, from state legislators, not law enforcement – then ominously warns that “[t]he state of Texas will ensure that you and colleagues are held accountable for every abortion that you illegally assisted” and asserts that the firm must retain all potentially evidentiary documents including any from the periods when SB 8 was enjoined. Apparently, the Freedom Caucus also expects to argue that Sidley violated the law even when the law was not in effect! The letter concludes with a menacing overreach: “Conduct yourselves accordingly.”
The Freedom Caucus’s threatening letter to Sidley Austin poses a peril to the legal profession itself. James Brosnahan, a pre-eminent San Francisco lawyer, recently posted an important warning that all lawyers must heed—and act upon:
“…. Speaking for myself: Every lawyer, every bar association, at every level, and every law office in the United States needs to come to the defense of our brothers and sisters in that respected firm.
This attack on one of us is an attack on all of us.”
Many have been waiting for bar associations to speak out about the lies and lawlessness that have plagued our politics for several years. But bar associations don’t act spontaneously on their own. Like most organizations, they respond to their members.
Every lawyer in every state must issue a call to action like Jim Brosnahan’s. Bars cannot remain silent when their own members are under threat. Nor should they remain silent when democracy itself is threatened.
