California joins the rest of the nation in adopting the 'snitch rule'

California prides itself on being an outlier.

“Only in California,” as they say, in describing everything from trends to tourist attractions, fashion to fame. Within the realm of legal ethics, daring to be different has been true as well. Notable for being the last state to officially adopt a version of the ABA Model Rules in 2018, California was the only state that had not adopted the ABA’s version of Rule 8.3. Last Thursday that changed.

On June 22, the California Supreme Court approved rule 8.3 of the California Rules of Professional Conduct, requiring California attorneys to report any lawyer who commits a criminal act, engages in fraud, misappropriates funds or property, or engages in conduct involving “dishonesty, deceit, and reckless or intentional misrepresentations.” The new rule is set to go into effect Aug. 1, 2023.

This rule has been a long time coming. According to the State Bar of California News Center, since 2010, California has twice considered and rejected the idea of adopting this type of rule, due to concerns raised by attorneys who weighed in.

In March 2023, the Committee of Professional Responsibility and Conduct and State Bar staff submitted two versions of Rule 8.3 for a 45-day public comment period, receiving a total of 390 comments, 328 of which were from attorneys. From the respondents, 51% of the comments were in favor of no rule, 22% were in favor of alternative one, and 17% were in favor of alternative two.

Regarding the text of the two alternatives, both require reporting if a lawyer knows of “credible” evidence of misconduct. The primary differences between the two alternatives was the scope of conduct that must be reported, and the trigger for that mandatory reporting.

Alternative 1 required reporting of “criminal acts, fraud, or misappropriation of funds or property in violation of rule 1.15,” and if the attorney’s conduct raises “a substantial question as to an attorney’s honesty, trustworthiness, or fitness as an attorney in other respects.”

Alternative 2 expanded the type of conduct that must be reported to include “acts of dishonesty, deceit, and misrepresentation.” Additionally, there would be no requirement that the reportable misconduct “raise a substantial question,” and the duty to report criminal acts would arise only if such acts “reflect adversely on an attorney’s honesty, trustworthiness, or fitness as an attorney in other respects.”

Both alternatives also included exceptions. The first would be if reporting would involve the disclosure of confidential information, such as that protected by attorney-client privilege or confidentiality, and also information obtained while participating in a substance use or mental health program.

The California Supreme Court’s new rule approved a modified version of alternative 2.

Yet, there may be challenges ahead.

Enactment and enforcement

Rule 8.3 Reporting Professional Misconduct now officially states:

“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.”

One initial challenge lies within the first six words: in terms of interpreting “undue delay.” Certainly when reporting something as serious as misconduct, which could jeopardize professional life and livelihood, a reporting lawyer doesn’t want to sacrifice accuracy for speed in creating a rush to judgment. On the other hand, slow-walking a report might create an illusion of uncertainty or fuel allegations of bad faith.

And what type of evidence is “credible?” Is firsthand observation of a lawyer mis-citing case law in court or talking to an opposing lawyer’s client in the hallway sufficient? Or is there a duty to investigate further?

Adding to the reporting analysis is the long-standing question of what type of criminal act impacts a lawyer’s honesty, trustworthiness or fitness as a lawyer. Thankfully, we have a wealth of case law on this prong from many jurisdictions, discussing everything from drunk driving to domestic violence, from tax fraud to trespassing. California lawyers who have not had to face this rule in the past will just need to do their homework.

But there will be additional hurdles.

Reporting reluctance

In addition to navigating the terms and definitions contained in the new rule, reporting requirements are complicated by challenges that have long been recognized as complicating the ability to enforce a “snitch” rule for lawyers. They are usually more personal than professional. They include reluctance and uncertainty.

Within a practice, if credible evidence of misconduct were unearthed, rule 8.3 would require a new associate to turn in his or her boss – likely the person responsible for hiring, firing, and promoting employees. Conversely, it would require a veteran attorney to report a new hire, or even a beloved law school colleague with whom he or she has practiced for decades. Within family-run law firms it would require a lawyer to report a spouse or child if the requisite elements were met. There are no “close friend” or “family” exceptions to the rule.

As a practical matter, many lawyers are hesitant to report close friends, colleagues, or even family members within closely knit firms for misconduct, even if they are aware of facts in support. This has been true in all of the other states which have adopted this rule.

Other lawyers are afraid to be wrong. After all, what type of evidence is credible? Was the information at issue witnessed in a court of law or reported within the court of public opinion? Water cooler gossip and hearsay would clearly not be sufficient to sustain a report. But how much “evidence” would a lawyer need? And how much corroboration should be necessary to justify a report?

An additional level of complication involves the perception of implicit bias. No one wants to be accused of biased reporting, in scenarios including, for example, where the lawyer being reported is opposing counsel on a difficult case, or a fellow associate with whom one is competing for a promotion. Reporting under these circumstances should be done in a fashion that carefully and meticulously documents and substantiates the basis for the report in fashion designed to overcome potential allegations.

Comments as practical guidance

California lawyers working their way through new rule 8.3 are well advised to consider not just the black letter of the rule, but the practical guidance provided by the comments. Comments [1] through [10] provide context to content in areas ranging from interpreting “undue delay” (comment [3]), to how the term “substantial question” refers to the “seriousness of the possible offense and not the quantum of evidence” the lawyer is aware of (comment [4]). The comments even provide examples of how the reporting requirements relate to other obligations, such as the guidance provided in comment [7] that reporting another lawyer’s criminal act or fraud to a tribunal may constitute a “reasonable remedial measure” pursuant to rule 3.3.(b) – a provision within the duty of candor.

Comment [10] even addresses reports made in bad faith, providing that lawyers “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” citing several rules and statutes: rule 3.3(a); Bus. & Prof. Code,§§ 6043.5 (a), and 6068(d).

Protecting the public and the profession

California lawyers are sworn to seek justice, protect the public, and pursue professionalism. New rule 8.3 will be incorporated accordingly into legal practice and procedure in the same fashion we tackled the set of new ABA-inspired rules in 2018. Familiarity with rule 8.3’s text and comments will equip lawyers with the tools they need to analyze potential misconduct by others, and the interpretation necessary to make informed decisions that are effective as well as ethical.