California Adopts New Rule 8.3
The California Supreme Court has adopted the so-called “snitch rule,”[1] i.e., Rule 8.3 of the California Rules of Professional Conduct, which takes effect August 1, 2023.
The new rule, entitled “Reporting Professional Misconduct,” requires California attorneys to report certain misconduct committed by another attorney. Specifically, California attorneys must report when they know 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.”[2]
The reporting attorney must act without “undue delay,” and the report must be made to either the State Bar of California (State Bar) or a “tribunal with jurisdiction to investigate or act upon the misconduct at issue.”[3] Attorneys may not participate in an agreement that would preclude the reporting of relevant misconduct.
Ruben Duran, Chairman of the State Bar’s Board of Trustees, says the new rule will “aid the State Bar in the investigation of misconduct and provide California with a similar rule that is in place in every other state in the nation.”[4] Indeed, every other state in the U.S. has already adopted some version of this rule.[5]
The American Bar Association developed a model rule for reporting attorney misconduct in 1983, and other states began adopting it in the years that followed. California steered clear of such reporting requirements until recently, when it was publicly reported that trial attorney Tom Girardi had allegedly stolen millions of dollars from his clients for decades.[6]
One former employee at Girardi’s now-defunct law firm said he knew Girardi has misappropriated a client’s settlement funds but chose not to inform the State Bar because the Rules of Professional Conduct did not require him to do so.[7] Although that attorney did not report Girardi’s misconduct, many other people did.
In fact, the State Bar received 205 complaints about Girardi’s conduct, starting in 1982; nonetheless, he remained in good standing with the State Bar.[8] In light of that scandal, the State Bar launched an investigation into its internal failings regarding the handling of complaints about Girardi.[9] The State Bar also proposed that a new rule be added to California’s Rules of Professional Conduct, requiring that lawyers report certain misconduct.[10]
Before the adoption of Rule 8.3, the State Bar of California’s Board of Trustees considered public commentary regarding whether such a rule was needed. Comments submitted by non-attorneys were largely in favor of adopting the rule, asserting that it would disincentivize misconduct and that lawyers are in a better position to recognize attorney misconduct.[11]
By contrast, more than 200 lawyers submitted comments in opposition to the rule, many of whom claimed that the State Bar’s disciplinary system would be overwhelmed with complaints about lawyers.[12] Some also stated that the Girardi case demonstrated that the problem was not a failure to report misconduct, since the State Bar had received hundreds of complaints about Girardi for decades. Instead, they noted, the Girardi case demonstrated that the issue was the State Bar’s failure to take appropriate action after receiving reports of misconduct.[13]
Thus, a new rule that requires the reporting of misconduct would not address the underlying issue of protecting the public from unethical attorneys. In addition, some lawyers have argued that a rule which obligates lawyers to report misconduct would prompt unscrupulous attorneys to lodge unwarranted bar complaints against opposing counsel to gain an advantage, thus heightening incivility in the legal profession.[14]
Notably, in order to curtail false and malicious reporting or the offering of false evidence, Comment 10 to the new rule provides that attorneys may be subject to discipline, criminal sanctions, or other penalties for engaging in such acts. Further, lawyers are prohibited from threatening to present criminal, administrative, or disciplinary charges in order to obtain an advantage in a civil dispute.[15]
The new rule also contains certain limitations on the reporting requirement. For instance, it does not require the disclosure of certain private information, including that which is protected by the attorney-client privilege or mediation confidentiality. Additionally, the rule does not require or permit a disclosure of information that a lawyer obtains while participating in a substance use or mental health program.
This exception to the reporting requirement aims to encourage lawyers to seek treatment through such programs.[16] The rule also does not apply if reporting would involve a disclosure of information that a lawyer obtained while participating “as a member of a state or local bar association ethics hotline or similar service.”[17]
As you prepare for the new rule to become effective in August, keep in mind that the California legislature is also considering a proposed bill regarding the obligation to report lawyer misconduct.[18] Senate Bill 42 would add section 6090.8 to the California Business and Professions Code. As currently drafted, it requires that a California lawyer report to the State Bar when the lawyer knows that another attorney has (1) engaged in professional misconduct to the detriment of a client, raising a substantial question as to that attorney’s honesty, trustworthiness, or ability to perform legal services with competence, or (2) conspired to engage in, or engaged in, treason, sedition, or insurrection against the State of California or the United States. For now, the legislature may view the adoption of California Rule 8.3 to have obviated the need for such a law.
[1] See Harriet Ryan & Matt Hamilton, In major reform, California attorneys must report misconduct by their peers, LA TIMES (June 22, 2023), https://www.latimes.com/california/story/2023-06-22/california-attorneys-must-now-report-misconduct-by-their-peers. See also Karen Sloan, “Snitch” rule adopted by California bar amid ethics scandals, Reuters (June 22, 2023), www.reuters.com/legal/legalindustry/snitch-rule-adopted-by-california-bar-amid-ethics-scandals-2023-06-22; Karen Sloan, Under ethics pressure, California state bar advances lawyer “snitch” rule, Reuters, www.reuters.com/legal/legalindustry/under-ethics-pressure-california-state-bar-advances-lawyer-snitch-rule-2023-05-18/.
[2] Cal. Rule of Prof’l. Cond. 8.3(a), https://supreme.courts.ca.gov/news-and-events/california-supreme-court-approves-new-rule-compelling-attorneys-report-misconduct.
[3] Id.
[4] Karen Sloan, “Snitch” rule adopted by California bar amid ethics scandals, supra n.1.
[5] Id.
[6] Harriet Ryan & Matt Hamilton, supra n.1.
[7] Karen Sloan, Under ethics pressure, California state bar advances lawyer ‘snitch’ rule, supra n.1.
[8] Id.
[9] State Bar of California Release Reports Detailing Past Unethical Conduct in Handling Girardi Complaints, The State Bar of California (Mar. 10, 2023), https://www.calbar.ca.gov/About-Us/News/News-Releases/state-bar-of-california-releases-reports-detailing-past-unethical-conduct-in-handling-girardi-complaints.
[10] Scott B. Garner, Ethically Speaking – California’s Proposed New Tattletale Rule, Orange Co. Bar Ass’n (Apr. 2023), www.ocbar.org/All-News/News-View/ArticleId/6435/April-2023-Ethically-Speaking-California-s-Proposed-New-Tattletale-Rule; see alsoRyan & Hamilton, supra, note 1.
[11] Karen Sloan, Under ethics pressure, California state bar advances lawyer “snitch” rule, supra n.1.
[12] Id.
[13] Scott B. Garner, supra n. 10.
[14] Id.
[15] Cal. Rule of Prof’l. Cond. 8.3, Comment 8 citing Cal. Rule of Prof’l. Cond. 3.10.
[16] Id., Comment 5.
[17] Id., Comment 2.
[18] Mallory H. Chase, Proposed Rule 8.3 Competing Alternatives: What’s on the Table Now?, SDCBA BLAWG 401 (Apr. 4, 2023), https://blawg401.com/proposed-rule-8-3-competing-alternatives-whats-on-the-table-now%ef%bf%bc/.