By Mallory H. Chase
Currently out for public comment are two alternative versions of a proposed new California Rule of Professional Conduct, rule 8.3, which would address a lawyer’s duty to report the misconduct of another lawyer to the State Bar. As it stands, California is the last hold-out United States jurisdiction without an adopted rule on the topic.
Most states utilize some version of ABA Model Rule 8.3, which broadly requires a lawyer to report to the State Bar where the lawyer “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[.]”
The instant alternative versions of the proposed rule 8.3 follow revisions to an initial draft rule proposed by the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC), made after a public comment period that closed last month. COPRAC’s prior version of the proposed rule would have created a duty to report if the lawyer knows through their own observations that another lawyer has committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. [1]
As compared to the initial draft proposed rule 8.3, the two alternative versions now under consideration would impose a broader duty to report misconduct of other lawyers. Still, either new alternative version of the proposed rule would impose the narrowest duty to report of any jurisdiction in the country.[2]
The first alternative proposed rule 8.3 as proposed by COPRAC (Alternative 1) would require that a “lawyer shall, without undue delay, inform the State Bar when the lawyer knows* of credible evidence that another lawyer has committed a criminal act, engaged in fraud,* or misappropriated funds or property in violation of rule 1.15 when that conduct raises a substantial question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”[3]
Upon review of COPRAC’s Alternative 1 proposed rule, State Bar staff prepared an alternative version of the proposed rule for public comment (Alternative 2), which expands the type of misconduct that must be reported. Under Alternative 2, a “lawyer shall, without undue delay, inform the State Bar when the lawyer knows* of credible evidence that another lawyer has: (1) committed a criminal act that reflects adversely on that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; or (2) engaged in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation or misappropriation of funds or property.”
The main differences between the two alternatives are the threshold triggering mandatory reporting and the type of conduct that must be reported. Comparing the two versions of the proposed rule, Alternative 2 would broaden the reporting duty by omitting the qualifier that the misconduct must raise a “substantial question” as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer to trigger the obligation to report, and by adding dishonesty, deceit, or reckless or intentional misrepresentation to the list of misconduct that must be reported.
Otherwise, the remainder of Alternative 1 and Alternative 2 are the same. Both versions of proposed rule 8.3 would:
- Require a lawyer to report another lawyer’s misconduct to the State Bar as soon as the lawyer reasonably believes the reporting would not cause material prejudice or damage to the interests of their client or a client of the lawyer’s firm;
- Clarify that a lawyer may, but is not required to, report other violations of the Rules of Professional Conduct or the State Bar Act in addition to those that must be reported by the rule; and
- Exclude from the duty to report:
- conduct that would be a criminal act in another state, U.S. territory, or foreign jurisdiction, but that is not a crime in California;
- information received by the lawyer while participating in a substance use or mental health program; and
- information that is protected by other rules or laws, including, but not limited to, the duty of confidentiality, mediation confidentiality, the attorney-client privilege, and other applicable privileges.
Public comment on the alternative versions of proposed rule 8.3 is open through May 4, 2023, at 11:59 p.m.[4]
Notably, with the recent focus on potential reforms to the California attorney discipline system, imposition of an obligation to report the misconduct of other lawyers is also under consideration by the California legislature. Senator Umberg recently introduced Senate Bill 42, which would add section 6090.8 to the California Business and Professions Code, establishing a statutory duty to report misconduct of other lawyers that is identical to the duty set forth in ABA Model Rule 8.3. The State Bar Board of Trustees has indicated that it intends to work with Senator Umberg’s staff regarding California’s potential adoption of proposed rule 8.3.
The State Bar Board of Trustees plans to vote on whether to approve proposed rule 8.3 at its May 2023 meeting. If approved, proposed rule 8.3 would then be submitted to the California Supreme Court for adoption.
[1] For arguments for and against the initial draft rule 8.3 proposed by COPRAC, see David C. Carr, Model Rule 8.3: The Argument Against, Ethics in Brief, November 2022; and Timothy Casey, Should Model Rule 8.3 Be Adopted in California: The Argument in Favor, Ethics in Brief, January 2023.
[2] See The State Bar of California, Open Session Agenda Item 60-1 March 2023, March 16, 2023, at pp. 5, 10.
[3] An asterisk (*) identifies a word or phrase defined in the terminology rule, rule 1.0.1.
[4] The State Bar instructs that public comments should be submitted using the online Public Comment Form, at https://fs22.formsite.com/sbcta/iq0kguk0oe/index.