Ethics Spotlight: California Joins Other States in Requiring a Lawyer to Report Misconduct

By Kevin Mohr

On August 1, 2023, new rule 8.3, derisively referred to as “the lawyer rat rule,” became effective in California, requiring lawyers to report other lawyers’ serious misconduct. 

Origin of the New Rule

Although ABA Model Rule 8.3 has been in existence since 1983, California consistently rejected its inclusion in the California Rules of Professional Conduct.[1] However, events involving disbarred lawyer Thomas Girardi led first to the introduction of Senate Bill 42 in early December 2022. SB 42 proposed the enactment of new Business & Professions Code § 6090.8, which was substantially similar to the model rule.[2] Soon thereafter, a proposed rule of professional conduct, rule 8.3, was circulated by the State Bar. 

These two proposals—one legislative and the other sponsored by the State Bar—developed parallel in time (albeit not in substance) over spring 2023. After two rounds of public comment, the State Bar Board of Trustees, declining to decide between two alternative versions of the rule, submitted both versions to the Supreme Court. 

On June 21, 2023, the California Supreme Court issued an order approving Alternative 2,[3] but making a number of additions and revisions to the rule.[4] The Supreme Court’s order stated the rule would become effective on August 1, 2023. With the Supreme Court’s approval of rule 8.3, SB 42 was largely withdrawn, with one provision folded into SB 40, the State Bar Fee Bill.[5]

Requirements of the New Rule

With this brief overview of the drafting process in mind, we can turn to what the rule requires of the lawyers to whom it applies, which includes not only California-licensed lawyers but also lawyers from other states who are authorized to practice in California.[6] 

This article is intended to show that, despite the misgivings expressed by many lawyers in the public comment submitted regarding proposed rule 8.3, the rule, with the aforementioned input from the Supreme Court, is carefully drafted to provide meaningful guidance to both lawyers and the State Bar in how it should be applied.

The rule consists of four “black-letter” provisions and 10 explanatory comments.

Paragraph (a) – The Basic Requirements. Paragraph (a) of the rule requires that a lawyer, “without undue delay,” inform the State Bar or “a tribunal with jurisdiction to investigate and act upon a lawyer’s misconduct” when the lawyer’s conduct “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Unlike its ABA Model Rule counterpart,[7] the California rule specifies with particularity the kind of conduct subject to reporting: (i) a criminal act or (ii) conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property. There are several points to keep in mind when analyzing the applicability of paragraph (a) to a particular set of circumstances. 

First, unlike the Model Rule, the duty to report misconduct is time-sensitive, that is, if either of the foregoing conditions for reporting are present, the lawyer must do so “without undue delay.” What constitutes undue delay is explained in Comment [3] to the rule: reporting must be made “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.” This qualification recognizes concerns expressed in the public comment on rule 8.3 that a lawyer’s reporting could, under some circumstances, injure the lawyer’s client, which would violate the lawyer’s undivided duty of loyalty owed to each client.[8]

Second, the duty to report is triggered only if the reporting lawyer “knows of credible evidence” of another lawyer’s misconduct. The duty is not triggered when the lawyer simply “knows” of misconduct, as required under the Model Rule. The rule thus incorporates a heightened knowledge requirement as is found in both MR 3.8(g) and California rule 3.8(f).[9] In short, a lawyer is asked not only to report alleged conduct of which the lawyer might have become aware, but to also evaluate the credibility of the information received. 

Third, unlike Model Rule 8.3, which provides only that the lawyer “inform the appropriate professional authority,” the California rule specifies that the lawyer make the report either (i) to the State Bar or (ii) to “a tribunal with jurisdiction to investigate or act upon such misconduct,” e.g., a court supervising a matter in which the misconduct is alleged to have occurred. Of particular note is this latter provision, which the Supreme Court itself added to the proposed rule the State Bar had submitted.[10] In short, the Supreme Court clarified that an “appropriate professional authority” could be a tribunal before which the lawyer was appearing when the misconduct occurred.[11]

The court also added Comments [6] and [7] to elaborate on this alternative reporting avenue. Comment [6] explains that whether the tribunal is an appropriate authority depends on whether the misconduct occurred during pending litigation and whether the tribunal “has the power to investigate and act upon” the alleged misconduct, and concludes that reporting to a non-judicial tribunal (e.g., a private arbitrator), which lacks such power, likely will not satisfy the rule. The Comment further clarifies that any evidence adduced before an appropriate tribunal may be admissible in a subsequent State Bar disciplinary proceeding, and could also trigger the tribunal’s duty to report the misconduct to the Supreme Court. Although not explicitly stated, it might be inferred that if the tribunal were to expressly state its intent to report the misconduct to the State Bar, the reporting lawyer would have no further duty to report it to the State Bar. 

Comment [7] recognizes that reporting to an appropriate tribunal “may constitute a ‘reasonable remedial measure’ under rule 3.3(b).” Rule 3.3 (Candor Toward the Tribunal) requires that a lawyer take reasonable remedial measures when the lawyer knows that a person is engaging or has engaged in criminal or fraudulent conduct in a proceeding before a tribunal.[12] However, as discussed below in relation to paragraph (d), there is a broad swath of protected information that cannot form the basis for informing a tribunal. We will have to see how this comment plays out in the future.

Fourth, rather than leaving the breadth of the rule’s application vague by simply referring to a “violation of the Rules … that raises a substantial question as to the lawyer’s honesty,” etc., as in the model rule, paragraph (a) specifically identifies (i) a “criminal act” the lawyer committed, or (ii) “conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property” in which the lawyer engaged. “Criminal act” should be self-explanatory.[13] Regarding conduct involving dishonesty, etc., or “misappropriation of funds or property,” it should be apparent that this language was influenced by the aforementioned events involving lawyer Girardi. Moreover, reporting is further limited to criminal or dishonest conduct “that raises a substantial question as to the lawyer’s “honesty, trustworthiness, or fitness as a lawyer in other respects.” Comment [4] clarifies that a lawyer need only report “those offenses that a self-regulating profession must vigorously endeavor to prevent,” i.e., the conduct must raise a “substantial question” as to the lawyer’s fitness. Further, Comment [4] clarifies in language taken from the model rule that the qualifier “substantial question” refers to “the seriousness of the possible offense,” not the “quantum of evidence” the reporting lawyer might become aware of. Notwithstanding this statement, a lawyer should be careful not to equate “quantum” with the word “credible” in paragraph (a).

Paragraph (b) – Permissive Reporting. Paragraph (b) of new rule 8.3 provides that “[e]xcept as required by paragraph (a), a lawyer may, but is not required to, report to the State Bar a violation of these Rules or the State Bar Act.”[14] This language, which is not qualified by the limiting language in paragraph (a) discussed above (e.g., “conduct involving dishonesty,” etc., “substantial question” as to honesty or fitness), suggests that despite cautionary language in the rule comments, a lawyer is permitted (though not required) to report any violation of the rules or State Bar Act even if there is no likely injury or harm to a client or the public. One might well ask why this provision is in the rule given that Comment [4] clarifies that the reporting obligation is limited to “those offenses that a self-regulating profession must vigorously endeavor to prevent,” presumably those offenses that might cause direct injury to clients or the public, or indicate the lawyer is not fit to be in a trust relationship with clients in our legal system. Paragraph (b) also raises a concern, voiced by lawyers during the public comment period and in seminars on the rule, that the rule can be “weaponized” by reporting lawyers to assert misconduct that raises no serious questions about a lawyer’s fitness but can function to distract from or delay proceedings. The commenters argued that this could function not only to decrease civility but also to increase the burden on the State Bar Office of Chief Trial Counsel.[15]

It is possible paragraph (b) is simply a holdover from an earlier version of the proposed rule where the reporting obligation was limited to reporting “criminal acts” of another lawyer, the concept being that even if a lawyer must report criminal acts, the lawyer would not be precluded from reporting other violations of the rules that raise serious questions of fitness but do not rise to the level of a criminal act. Regardless, the question a reporting lawyer considering his or her obligations—or limits—under the rule should probably ask is whether it is appropriate to inform the State Bar or a tribunal where the alleged violation raises no serious question as to the other lawyer’s honesty or fitness. The answer is probably not. Comment [8] cautions that although a lawyer may report misconduct, the lawyer must not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute in violation of rule 3.10. Further, Comment [10] cautions lawyers that they may be subject to criminal penalties for false and malicious reports or complaints filed with the State Bar or be subject to discipline or other penalties by offering false statements or false evidence to a tribunal. This latter statement, added by the Supreme Court, together with Comment [8]’s reminder of potential violations under rule 3.10, suggests that a lawyer should take care to limit reporting under the rule to “those offenses that a self-regulating profession must vigorously endeavor to prevent.”[16]

Paragraph (c) – What constitutes a “Criminal Act” under the rule. Rule 8.3(c) has no counterpart in ABA Model Rule 8.3. Paragraph (c) clarifies that “criminal act” as used in paragraph (a) excludes conduct that might be a criminal act in another jurisdiction but is not so in California.[17] This is a critical provision for California lawyers. It clarifies, for example, that possessing cannabis for personal use or assisting a person to obtain an abortion, although such conduct might constitute criminal acts in another state, is not subject to the reporting requirement.[18] In the case of assisting a person to obtain an abortion, it would appear that not only would a lawyer not be required to report such conduct under paragraph (a), but the lawyer would also not be permitted to report it under paragraph (b) because the definition excludes the conduct from the scope of the rule. It is possible that lawyers who did report other lawyers for such conduct might even find themselves subject to discipline or other sanctions as explained in Comments [8] and [10], discussed above. As to a lawyer’s possession of cannabis for personal use, reporting such conduct under paragraph (b) would also likely not be allowed unless the reporting lawyer is aware the use is interfering with the other lawyer’s ability to competently provide legal services.

Paragraph (d) – Protected information not required or authorized to be disclosed. Rule 8.3(d) clarifies the exception to the rule in ABA Model Rule 8.3(c) that prohibits disclosure of information protected by Model Rule 1.6 (confidentiality) or that the reporting lawyer gained while participating in an approved lawyer’s assistance program. California rule 8.3(d) specifies that protected information includes not only that information identified in the Model Rule, but also covers (i) information protected by rule 1.8.2 (“use” of client confidential information); (ii) information protected by mediation confidentiality, Evid. Code §§ 1115 et seq; (iii) the lawyer-client privilege, Evid. Code §§ 950 et seq; (iv) other applicable privileges (e.g., spousal privilege, Evid. Code §§ 970 et seq); and (v) other rules or laws, including information that is confidential under Bus. & Prof. Code § 6234 (Attorney Diversion and Assistance Program). It should be noted that by not limiting the exception to attorney-client privileged material, as was proposed under SB 42, paragraph (d) not only recognizes California’s historically strong duty of confidentiality, but also brings California in line with the substantial majority of jurisdictions in the United States.[19]

Paragraph (d) also clarifies that information learned by a reporting lawyer’s participation in any “substance use or mental health program,” not just in a “lawyers assistance program,” is not subject to reporting. Comment [5], which is substantially similar to Model Rule 8.3, cmt. [5], in both language and tone, explains the importance of precluding information gleaned from such sources:

In these circumstances, providing for an exception to the reporting requirement of paragraph (a) of this rule encourages lawyers to seek treatment through such programs. Conversely, without such an exception, lawyers may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public.

Other Considerations

In addition to the comments already discussed, the rule has several other comments. Comment [1] explains that new rule 8.3 does not override a lawyer’s duty to report his or her own misconduct as required by the Rules or the State Bar Act, e.g., Bus. & Prof. Code § 6068(o) and rule 8.4.1(d). Comment [2] explains that the rule is not intended to discourage a lawyer from seeking advice, and that the rule does not apply to lawyers consulted by another lawyer about the applicability of rule 8.3. Although not enumerated in paragraph (d), the duty to report does not apply if it requires disclosure of information learned by a lawyer participating in a state or local bar association “hotline.” Finally, Comment [9] is a reminder that lawyers may be disciplined for participating in an agreement that prohibits the reporting of a rules violation, per rule 5.6(b).

Conclusion

Lawyers are members of a self-regulated profession and function not just as advocates and counselors, but also as officers of the court. Although rule 8.3 might be viewed by some as unpalatable and a “regulation too far,” it has been carefully drafted to provide good guidance on our responsibilities under the rule. When in doubt about whether the rule applies, a lawyer should seek counsel. 

Kevin Mohr is a Professor Emeritus at Western State College of Law in Irvine. He is a founding member of the CLA’s Ethics Committee. The views expressed are his own.

[1] All three Rules Revision Commissions, including the most recent Commission that concluded its work in 2018, declined to include a counterpart to Model Rule 8.3.

[2]  See SB-42 Attorneys: reporting professional misconduct, available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB42 [Last visited 7/21/23]

[3] See https://newsroom.courts.ca.gov/sites/default/files/newsroom/2023-06/S280290%20-%20admin%20order%202023-06-21-02.pdf [Last visited 7/21/23]

[4]  See Press Release, California Supreme Court Approves New Rule Compelling Attorneys to Report Misconduct by Other Attorneys, available at https://newsroom.courts.ca.gov/news/california-supreme-court-approves-new-rule-compelling-attorneys-report-misconduct-other [Last visited 7/21/23]

[5] The remaining provision from SB 42 would require a lawyer “to inform the State Bar if the licensee knows that another licensee has conspired to engage in, or has engaged in, treason, sedition, or insurrection against the State of California or the United States.” See https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240SB40 [Last visited 7/21/23]

[6] Lawyers not licensed to practice in California may be permitted to practice under a variety of provisions in the California Rules of Court, 9.40 through 9.48, e.g., lawyers who appear pro hac vice or are registered as in-house counsel. See Rules of Court, Title 9, Division 4, starting at https://www.courts.ca.gov/cms/rules/index.cfm?title=nine&linkid=rule9_40 [Last visited 7/21/23]

[7]  ABA Model Rule 8.3 simply refers to “a violation of the Rules of Professional Conduct.” The Model Rule is available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct/ [Last visited 7/21/23]

[8] It should be apparent that the rule does not address what a lawyer should do about misconduct that occurred before the new rule’s effective date, August 1, 2023, and of which the lawyer has knowledge. Given Comment [4]’s clarification that the “rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent,” it would appear, as discussed below, that if the misconduct still threatens to harm or does cause harm to a person, the misconduct should be reported. However, whether reporting is required will depend on the specific circumstances, including the seriousness of the misconduct and the source of the lawyer’s information.

[9] These provisions set the standard for when a prosecutor is expected to take steps to alert the appropriate authorities that a convicted defendant likely did not commit the offense of which the defendant had been convicted.

[10]  See Press Release, supra note 5.

[11] Tribunal is defined in the rule 1.0.1(m) to mean “(i) a court, an arbitrator, an administrative law judge, or an administrative body acting in an adjudicative capacity and authorized to make a decision that can be binding on the parties involved; or (ii) a special master or other person* to whom a court refers one or more issues and whose decision or recommendation can be binding on the parties if approved by the court.”

[12] Paragraph (b) of rule 3.3 (Candor Toward the Tribunal) provides: “A lawyer who represents a client in a proceeding before a tribunal* and who knows* that a person* intends to engage, is engaging or has engaged in criminal or fraudulent* conduct related to the proceeding shall take reasonable* remedial measures to the extent permitted by Business and Professions Code section 6068, subdivision (e) and rule 1.6.”

[13] Some public commenters raised concerns that a reporting lawyer might not recognize certain crimes. Under the language of the rule, however, crimes need not be reported unless they raise a “substantial question” about the lawyer’s honesty or fitness as a lawyer in other respects. A reasonable approach would be for a reporting lawyer to focus on the specific conduct of the lawyer allegedly engaging in misconduct, particularly conduct involving dishonesty, fraud or deceit, intentional misrepresentation or misappropriation, conduct that under the rule does not require a criminal predicate and goes to heart of a lawyer’s fitness to practice. Regardless of whether such conduct might constitute criminal conduct, it is subject to the rule.

[14] Unlike ABA Model Rule 8.3, new rule 8.3 does not require lawyers to report judicial misconduct. Model Rule 8.3(b) provides: “A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.”

[15] See Erika Doherty March 16, 2023 Memo to State Bar Board of Trustees re Proposed Rule of Professional Conduct 8.3, available at https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000030459.pdf [Last visited 7/21/23]

[16] At the time of this article’s publication, the State Bar has adopted further revisions to the Rules of Professional Conduct that would make conduct lacking civility subject to discipline. See Press Release, State Bar of California Board of Trustees Approves Measures to Improve Civility in the Legal Profession, available at https://www.calbar.ca.gov/About-Us/News/News-Releases/state-bar-of-california-board-of-trustees-approves-measures-to-improve-civility-in-the-legal-profession [Last visited 7/23/23] For a description of the proposed rules, see Erika Doherty July 20, 2023 Memo to Board of Trustees Requesting Approval of Amendments to Rules 1.2 and 8.4 and new Rule 8.4.2, available at https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031188.pdf  [Last visited 7/21/23]. If these rules were to be approved by the Supreme Court, the concerns regarding weaponization of rule 8.3 and concomitant decrease in civility might ironically be realized. On the other hand, the possibility of such rules being approved might also in part explain the Supreme Court’s inclusion of tribunals as an alternative avenue for reporting misconduct under rule 8.3. The appropriate venue for resolving litigation incivility would be the tribunal where the alleged misconduct occurred. A judge presiding over a matter has substantial authority to supervise and control the proceedings. This is not to say that that transactional negotiations always take on the flavor of a Noel Coward Comedy of Manners, but the adversarial nature of litigation is more likely to give rise to the kind of behavior that is characterized as “uncivil” and the subject of the proposed civility regulations.

[17] Paragraph (c) provides: “For purposes of this rule, ‘criminal act’ as used in paragraph (a) excludes conduct that would be a criminal act in another state, United States territory, or foreign jurisdiction, but would not be a criminal act in California.

[18] Compare rule 1.2.1, Cmt. [6], which clarifies that California lawyers may “advise a client regarding the validity, scope, and meaning of California laws that might conflict with federal or tribal law,” and may assist the client in drafting or administering, or interpreting or complying with California laws, notwithstanding that the client’s actions might violate the conflicting federal or tribal law.

[19] Nearly all United States jurisdictions have adopted a provision substantially similar to Model Rule 8.3(c). All jurisdictions except from reporting information gained during a lawyer assistance program. Nearly all jurisdictions exclude from reporting information protected by a lawyer’s duty of confidentiality under rule 1.6. Only three jurisdictions, Illinois, Ohio and Montana, limit the exception to attorney-client privileged information. See ABA, Variations of the ABA Model Rules of Professional Conduct, Rule 8.3 (11/2022), available at https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-8-3.pdf [Last visited 7/21/23]