By Deborah Wolfe
This relatively new Rule has generated much controversy and colloquy since it was approved by the California Supreme Court, effective August 1, 2023. It [CB1] unquestionably was instituted in the wake of former member of the bar Thomas Girardi’s theft of his clients’ money and the lack of oversight or reporting of the theft by Girardi’s associates in his law practice.
The Rule comes under the heading “Maintaining the Integrity of the Profession”, and essentially requires attorneys who are aware of another attorney’s misconduct to report the misconduct to the Bar. Failure to report misconduct is itself a violation of the RPCs and can subject an attorney to discipline, which includes public reproval, suspension, or disbarment. Rule 8.3 (a) states:
“A lawyer shall, without undue delay, inform the State Bar, or a tribunal* with jurisdiction to investigate or act upon such misconduct, when the lawyer knows* of credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial* question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”
The Rule has been in effect for many years in other States, and there are some cases in which courts found that attorneys should have been reported to disciplinary authorities for failure to report on another attorney’s misconduct. In one case, an attorney was told by a former prosecutor that the prosecutor had suppressed exculpatory evidence in a criminal case, and instead of reporting this incident to the Office of Disciplinary Counsel, the attorney only told a criminal defense attorney in relation to a pending case (In re Riehlmann (2005) Supreme Court of Louisiana 891 So..2d 1239). [CB2] [CB3]
First and foremost, this Rule is meant to be applied to attorneys who have credible evidence that another attorney has committed a crime, particularly a crime related to trust account violations, as well as other Rules of Professional Conduct (Rule or Rules) violations. The message inherent in Rule 8.3: all attorneys must be knowledgeable regarding the Rules and in that spirit all attorneys should annually review the entirety of the Rules. Any Rule violation—even inadvertent ones—can subject an attorney to State Bar discipline.
Also, the comments for each Rule should be reviewed, as they are made by COPRAC (the State Bar’s Committee on Professional Responsibility and Conduct) to provide clarity and guidance on each Rule’s meaning and application. This provides guidance to the practitioner in determining what conduct is required to be reported.
What is particularly relevant to all practitioners is that Rule 8.3 states that the conduct subject to mandatory reporting must “raise a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” The determination of whether or not an attorney’s conduct is of a type that must be reported to the bar pursuant to Rule 8.3 is both objective and subjective. It is a matter of not only how a Rule interfaces with another attorney’s conduct but requires a subjective assessment by a witnessing attorney of the significance of the apparent violation. Common sense can’t be left out of the equation. COPRAC’s comment [4] to the Rule is illuminating: “This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this rule[CB4] [CB5] . The term “substantial question”[i][1] refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”[2]
Each attorney has the responsibility of making their own determination of whether[DW6] or not to report. An attorney does not have a duty to do a thorough and complete investigation of another lawyer’s conduct in order to give rise to the responsibility to report another lawyer under Rule 8.3. However, it is important to note that in the course of a State Bar investigation involving serious misconduct by any lawyer, an investigator performing due diligence will surely be looking at other lawyers who either knew or should have known about the misconduct. This situation is likely one in which a Rule 8.3 violation may arise.
[1]“Substantial” is defined by Rule 1.01.1(l). “Substantial” when used in reference to degree or extent means a material matter of clear and weighty importance.”
[2] If one were to grammatically parse Rule 8.3, the placement of punctuation makes the Rule ambiguous. Rule 8.3(a) states: “A lawyer shall, without undue delay, inform the State Bar, or a tribunal with jurisdiction to investigate or act on such misconduct, when the lawyer knows of credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” (Emphasis added.) Note that after “criminal act” there is no comma, indicating that the following conduct, the “or”, being described is the only other conduct that must be reported besides a criminal act involving funds or property. Likewise, there is no comma between the last specifically described conduct, “misappropriation of funds or property” and “that raises a substantial question…”. This could indicate that the conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation must be that related to “ the misappropriation of funds or property”, to create a mandatory reporting obligation. Though the intent of the Rule is to provide an avenue for the State Bar to learn of unethical conduct of any of the kind mentioned of which it would otherwise be unaware, the rather inartful drafting of it from a grammatical perspective leaves room for interpretation. While one would hope that attorneys witnessing serious violations of the ?Rules or conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation would voluntarily report this conduct to the State Bar for investigation, there is ambiguity in what would constitute grounds for mandatory reporting. Lacking any judicial precedent, it is difficult to know where the line begins and ends.