By Timothy Casey
This article responds to an earlier article that argued against adoption of American Bar Association Model Rule of Professional Conduct 8.3. (See, David C. Carr, Model Rule 8.3: The Argument Against, Ethics in Brief, November, 2022).
What is Model Rule 8.3?
Model Rule 8.3 imposes upon lawyers an obligation to report ethical violations committed by another lawyer or a judge. Model Rule 8.3(a) states that a “lawyer who knows that another lawyer has committee a violation” of the ethical rules that “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer … shall inform the appropriate professional authority.” The rule also requires a lawyer to report ethical violations of a judge. (Model Rule 8.3(b).) The rule does not require disclosure in two situations: where the information is protected by the duty of confidentiality; and where the information is acquired while the lawyer or judge is participating in an approved lawyer’s assistance program. (Model Rules 8.3(c).)
Does California have anything comparable to Model Rule 8.3?
California does not have a Rule 8.3. Despite being adopted by most, if not all, American jurisdictions, Model Rule 8.3 has not been adopted in California. In 2018, the California Supreme Court adopted a wholesale revision to the California Rules of Professional Conduct. The revision process began with the formation of a Rules Revision Commission in the mid-2000’s. This first Rules Revision Commission recommended the adoption of a Rule 8.3 in its report to the State Bar’s Board of Governors; however, the Board rejected the Commission’s recommendation. In 2014, the State Bar submitted proposed new rules (without Rule 8.3) to the Supreme Court for adoption. The Supreme Court summarily rejected the proposal. The Court found the revisions failed to articulate “clear and enforceable…disciplinary standards” and ordered the formation of a new committee to revise the rules. The Second Rules Revision Committee for the Revision of the Rules of Professional Conduct reviewed the work of the first committee, including whether to adopt Rule 8.3; but ultimately the rule was not adopted as part of the Second Committee’s recommended set of rules.
What are the arguments for adoption of Model Rule 8.3?
Adoption of Model Rule 8.3 would protect the public and clients by mandating the reporting of significant rule violations. Attorneys would no longer have the option to turn a blind eye to the misconduct of other attorneys. Moreover, a reporting requirement would provide cover to lawyers who observe ethical violations but fear recrimination, both overt and subtle, that could accompany reporting the misconduct to the appropriate disciplinary authority.
Fears of intrusion on an attorney’s duties of confidentiality and loyalty are overstated. Subsection (c) of Model Rule 8.3 protects confidential information by including an exception to the reporting requirement when reporting would jeopardize client confidentiality. Subsection (c) also promotes the policy of encouraging lawyers to seek help for mental health issues by protecting information revealed through participation in a lawyer’s assistance program.
Model Rule 8.3 strikes an appropriate balance in limiting the type of violations that must be reported. The rule does not require a lawyer to report every violation. Only those violations that “raise a substantial question” about a lawyer’s honesty or fitness to practice require a report. A rule requiring universal reporting of all ethical violations would place too high a burden on lawyers and might inundate disciplinary authorities with reports of minor transgressions. By adding the “substantial question” criteria, the Rule limits the reporting requirement to non-trivial ethical violations.
Recent critiques of California’s system of attorney discipline should prompt a re-examination of both the substantive rules and the mechanisms of enforcement. Adoption of Model Rule 8.3 should be included among the substantive reforms to attorney discipline in California.
The views expressed above are those of the author alone and are not attributed to any institution or organization.
Well done, Tim