By David C. Carr
American Bar Association (ABA) Model Rule 8.3 provides that “a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Despite being adopted by most, if not all, American jurisdictions, Rule 8.3 has not been adopted in California. A California version was considered by the Commission for the Revision of the Rules of Professional Conduct but not adopted as part of the Commission’s recommended set of rules. The drafting team memo sets forth this analysis:
On balance, the members of the drafting team agree with the Board’s prior decision not to recommend a reporting requirement. The pros of adopting a reporting requirement (whether in the mandatory form of ABA MR 8.3 or a hybrid permissive/mandatory form along the lines of RRC1’s proposed rule) include:
1. improving public protection by requiring lawyer reporting of certain known violations of the rules that raise a substantial question about a lawyer’s “honesty, trustworthiness or fitness as a lawyer;” and
2. bringing California’s rules more in line with the ABA Model Rules.
There are also significant cons to a reporting requirement; either the Model Rule or RRC1 hybrid approach would:
1. require a lawyer to determine whether a known violation raises a substantial question as to (or implicates) the lawyer’s honesty, trustworthiness or fitness as a lawyer;
2. despite the recognition that reporting could be trumped by the duty of confidentiality with respect to information learned in the course of representation of a client, pose a potential for conflict with that rule, or with the attorney-client relationship, to the extent lawyers might feel obligated to discuss waiver of confidentiality to further the reporting interests of the lawyer rather than the client’s own interests;
3. pose a potential for conflicts with a lawyer’s duty of loyalty if reporting posed a risk of adversely affecting a current or former client’s interests; and
4. potentially be viewed as inconsistent with the discretionary reporting policy reflected in Canon 3D(2) of the California Code of Judicial Ethics that states: “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.” (Emphasis added.)
On balance, the drafting team agrees that the cons outweigh the pros, particularly given that California has never had such a reporting requirement, and that the analysis required for lawyers to determine the scope of any reporting requirement seems inconsistent with this Commission’s charge to retain the historical nature of the California Rules as a “clear and enforceable articulation of disciplinary standards.”
Drafting team memo dated May 16, 2016. The memo alludes to a decision of the State Bar Board of Trustees (then known as the Board of Governors) not to adopt a proposed version of Rule 8.3 that the prior Rules Revision Commission had recommended. The prior Commission had labored for almost ten years to produce a revised set of California Rules of Professional Conduct, only to have its entire work product rejected by the California Supreme Court in August 2014, based on the high Court’s finding that it failed to articulate “clear and enforceable…disciplinary standards.”
California’s approach to its Rules of Professional Conduct has historically differed from that of the American Bar Association (ABA). The ABA’s articulation of professional standards, from the original 1908 Canons of Ethics, through the 1969 Code of Professional Responsibility and, most recently, the 1983 Model Rules of Professional Responsibility and its subsequent revisions, has emphasized the Rules’ dual role both as articulating norms of attorney conduct as prophylactic guidance and also furnishing “black letter” rules of conduct furnishing a basis for imposing professional discipline. This is why the 1969 Code was written with its clumsy and confusing division into “Canons,” “Ethical Considerations,” and “Disciplinary Rules.” It is also why the ABA Model Rules comes with an extensive Preamble setting forth the aspirational context of the Rules and a lengthy Commentary for each of its Rules. California’s Rules, beginning with its first set adopted in 1928, have always focused on more simple commandments written with an eye toward disciplinary enforcement. Every edition of the California Rules from 1928 on has referred to other sources as providing the prophylactic guidance on professional norms, including the ABA work product.
The 1969 Code contained the first version of the rule requiring the reporting of professional conduct.
DR 1-103 -Disclosure of Information to Authorities. (A) -A lawyer possessing unprivileged knowledge of [misconduct] shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. (B) -A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.
This Rule broadly required the reporting of any misconduct and was widely regarded as unenforceable (see Williams, Reputation and the Rules: An Argument for a Balancing Approach under Rule 8.3 of the Model Rules of Professional Conduct, 68 La. L. Rev. (2008) https://digitalcommons.law.lsu.edu/lalrev/vol68/iss3/6.) When the Model Rules were drafted just 14 years later, the broad mandate was narrowed to the current 8.3 formulation requiring reporting only of misconduct “raising a substantial question about a lawyer’s honesty, trustworthiness or fitness as a lawyer.”
The more narrow formula of current Rule 8.3 presents enforcement issues of its own. This formula requires a reporting attorney to analyze whether the alleged misconduct meets the threshold for the type of serious misconduct required to be reported. Moreover, it would require the discipline prosecutor seeking to enforce a Rule 8.3 violation to prove by clear and convincing evidence (the disciplinary burden of proof in California) that (1) the alleged misconduct met the 8.3 standard and (2) the attorney who failed to report the misconduct knew the misconduct met the 8.3 standard and (3) nonetheless, the attorney failed to report the misconduct.
There are also confidentiality problems with Rule 8.3. Under Model Rule 1.6, a lawyer must protect information “relating to the representation” must be kept confidential. California’s version of Rule 1.6 refers to the vague mandate in Bus. & Code section 6068(e)(1) to protect the “secrets and confidence” of the client “at every peril.” DR 1-13 carefully limited its reach to “unprivileged” information, and Model Rule 8.3(c) makes it clear that confidentiality must be maintained when reporting alleged misconduct.
Despite its adoption by almost all American jurisdictions, it is significant that there are relatively few complaints of misconduct reported by attorneys (see Williams at page 933) and apparently very few disciplinary prosecutions for violation of Rule 8.3. As Williams points out, there is ingrained cultural reluctance to be an “informer.”
“This obligation is extraordinary. Generally speaking, citizens are not placed under a duty to report crimes that have come to their attention (Lynch, The Lawyer As Informer Duke L.J. 491 (1986) (https://scholarship.law.duke.edu/dlj/vol35/iss3/2/.) Putting an ill defined obligation on lawyers to inform on other lawyers can only increase the distrust that has contributed to the erosion of civility in the profession.
The Girardi scandal has prompted a re-examination of whether California should enact some version of Rule 8.3. But the problem in Girardi was not that the State Bar was unaware of the allegations of misconduct but that it failed to investigate them adequately. By every indication, the problems with Rule 8.3 give us no assurance that its adoption would deter future misconduct similar to Girardi’s.