Litigation
Cal. Litig. MAY 2024, VOLUME 37, ISSUE 1
Content
- 2023 Year-end Report On the Federal Judiciary
- A Day Without a Court Reporter
- Ai - Use With Caution
- Editor's Foreword: No Waiting: Litigaition Is Here!
- Editor's Foreword: No Waiting: Litigation Is Here!
- From the Section Chair Our 2024 Hall of Fame Inductions, Including Our Trial Lawyer Hall of Fame 30Th Anniversary Reception and Event
- Interview With United States District Judge Troy L. Nunley
- Navigating the New Legal Landscape For Child Sexual Abuse Civil Litigation In State and Federal Court
- PAST SECTION CHAIRS & EDITORS-IN-CHIEF
- SECTION OFFICERS & EDITORIAL BOARD
- Table of Contents
- What Will Artificial Intelligence Mean For Litigation?
- Whither Chevron? the Past, Present, and Possible Futures of Judicial Deference
- Why Black Box Ai Evidence Should Not Be Allowed In Criminal Cases
- Working: Conversations With Essential Workers Behind the Scenes In the Court System
- Reporting Another Lawyer's Professional Misconduct: Implications For California Lawyers
REPORTING ANOTHER LAWYER’S PROFESSIONAL MISCONDUCT: IMPLICATIONS FOR CALIFORNIA LAWYERS
Written by Mark Tuft*
California has long resisted imposing a mandatory duty to report another lawyer’s misconduct. Instead, California has encouraged voluntary reporting and imposed a duty to report a lawyer’s own misconduct. Business and Professions Code section 6068, subdivision (o). Recent events led to the adoption of a mandatory reporting rule, effective August 1, 2024. The introduction of Senate Bill 42 in late 2022 in the aftermath of the Girardi scandal proposed the adoption of a statute similar to American Bar Association Model Rules, rule 8.3 (Reporting Professional Misconduct), which spurred the State Bar to recommend that the Supreme Court adopt a version of model rule 8.3 for California lawyers. After making a number of additions and revisions, the Supreme Court approved the rule in an order dated June 21, 2023. The Legislature proceeded to enact section 6090.8, which requires a State Bar licensee to inform the State Bar if another licensee has conspired to engage in, or has engaged in, treason, sedition, or insurrection against the State of California or the United States.
Model rule 8.3 has a long and controversial history. Although the rule has been adopted in a majority of the states, it has not enjoyed uniform enforcement or consistent application. Lawyers are reportedly troubled by a disciplinary rule that requires reporting misconduct of a lawyer’s colleague or adversary. There are concerns that reporting misconduct of another lawyer in the lawyer’s firm may result in personal and professional risks for the reporting lawyer. (ABA Formal Opns., formal opn. No. 433 (2004.) Reporting misconduct of an adversary in litigation might be seen as attempting to gain a tactical advantage. Other concerns have been raised that the rule will be used unfairly by unprincipled lawyers on the pretense that the rule requires reporting when it is not mandated and that the rule may require a lawyer to act contrary to the best interests of the client.
While these concerns are not sufficient grounds for not having a mandatory reporting requirement, it is important to note that rule 8.3 has a number of decision points that are not easily applied. Lawyers should have sufficient knowledge of the purpose and scope of the rule and its limitations. It is also important to understand the unique features of California’s version of rule