By Irean Z. Swan
A couple of weeks ago, on June 22, 2023, the Supreme Court of California unanimously approved the new Rules of Professional Conduct rule 8.3, or better known as the “snitch rule.” Before June 22, 2023, California was the only state that did not adopt the “snitch rule” in the ABA Model Rule 8.3, or a version of this rule. The Court’s decision was based on one of two alternatives (they picked Alternative Two), which my colleague on the Legal Ethics Committee, Mallory H. Chase, discussed in this article.
Starting on August 1, 2023, attorneys have a new requirement to report other lawyers for misconduct in certain situations. The new Rule 8.3 provides, in pertinent part:
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 limitation to instances where the lawyer knows of credible evidence of a crime or the conduct specified (involving dishonesty, fraud, etc. that raises a substantial* question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) deviates from the ABA Model Rule 8.3, which does not include the same limitation. Rather, Model Rule 8.3 simply requires reporting 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,” which is a broader requirement.
The new rule also deviates from Model Rule 8.3 because it provides, in Comment [3], that the duty to report “requires the lawyer to report as soon as the lawyer reasonably believes* the reporting will not cause material prejudice or damage to the interests of a client of the lawyer or a client of the lawyer’s firm.” Model Rule 8.3 does not include this timing requirement.
Rule 8.3 also includes several exceptions, which are not in Model Rule 8.3.
First, the Rule does not require a lawyer to report another lawyer who committed a criminal act in another state, United States territory, or foreign jurisdiction, but would not be a criminal act in California.
Second, the Rule does not require or authorize disclosure of information a lawyer gains while participating in a substance use or mental health program.
Third, the Rule does not require a lawyer to disclose: (1) a client’s confidential information; (2) information protected by the mediation confidentiality; (3) information protected by the attorney-client privilege or other applicable privileges; or (4) information protected by “other rules or laws,” including information provided to or obtained by the Attorney Diversion and Assistance Program, which is confidential under Business and Professions Code section 6234.
Rule 8.3’s effect in California remains to be seen but in the meantime and before the rule takes effect on August 1, 2023, it will be wise to become familiar with the new rule’s requirements and limitations.