Why the new 'snitch rule' might be one of the hardest ethical rules to follow

As a general rule, most lawyers are not unethical. Sure, people make mistakes and exercise poor judgment on occasion; but few of those instances involve willful, intentional, or deceitful misconduct. Accordingly, most lawyers find the rules of professional conduct fairly easy to follow. Except for one: the requirement that they turn on unprofessional peers. Because whether friend, family, or foe, if a lawyer “knows” about another lawyer’s professional misconduct, new Rule 8.3 requires exactly that.

Enactment is easier than enforcement

Adopted by the California Supreme Court on June 21, 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.”

Legal skeptics have argued for years that this rule is easy to read, but hard to enforce. Consider the predictive value of practical experience.

No one likes a snitch

Despite the negative connotation that often haunts us from childhood of being a “tattletale,” whistleblowers are a valuable asset within every industry. Across the broad spectrum of service professions, weeding out bad actors protects clients, patients and customers. But what happens to the brave individuals who blow the whistle? Despite strong rules against retaliation, some whistleblowers find themselves treated differently, to put it mildly. If they remain at their law firm, church, or medical clinic, they may feel ostracized, excommunicated, or quarantined. Peers who once confided in them no longer share information, and the flow of invitations to extracurricular invitations dry up. For those who decide to make a fresh start elsewhere, some find it surprisingly difficult to find a new job, or make friends when they do. Frustrated that speaking truth impacts trust, many people end up second guessing their decision to do the right thing.

But similar to professional creeds in other industries, lawyers are sworn not just to uphold the law, but to protect the public, clients, and the integrity of the profession. That is why rule 8.3 is important.

Pursuit of professional integrity

California Business and Professions code 6067 states that every admitted attorney “shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.” The very first listed duty of an attorney per California Business and Professions code 6068 is (a) “[t]o support the Constitution and laws of the United States and of this state.”

Other 6068 duties include provisions requiring cooperating with State Bar investigations, whether initiated by self or others. A rule 8.3 report will trigger this requirement to cooperate. The challenge for California lawyers will now be identifying what facts and circumstances trigger compliance with 8.3’s requirement to report.

Duty is in the eye of the beholder

In many cases, seeing is believing. But not necessarily for lawyers considering whether they see enough to trigger the reporting requirements of rule 8.3. Because the rule is triggered when they “know” about “credible evidence” supporting the proscribed behavior, it seems to require lawyers to experience the misconduct in some form. Yet, in deciding whether or not to turn in a colleague for professional conduct, no one wants to be wrong. Concerned with everything from implicit bias to perceived malicious intent, lawyers want to get it right. So for starters, what is “credible” evidence?

In answering that question, actions speak louder than words. Observations are more likely to prompt compliance with rule 8.3 than water cooler gossip or second hand hearsay. Credible evidence should certainly include what lawyers see with their own eyes or hear for themselves – as duty is also in the ear of the hearer. Even so, many lawyers will seek to corroborate their observations further, in order to be sure – just as they would when building a client’s case.

Sacrificing certainty for speed

How long does a lawyer have to mull over a reporting decision? When considering action that could jeopardize the professional life and livelihood of a peer, no one wants to sacrifice precision for speed. Yet in resisting a rush to judgment, lawyers must also make sure dragging their feet won’t be considered “undue delay” within the meaning of rule 8.3. Slow walking a report might even sow seeds of doubt in the reporting party, who may begin to second guess the accuracy of their original observations.

An additional source of reluctance may arise when the lawyer who has engaged in misconduct is not a friend, but a foe. Rule 8.3 Comment [10] states in part that lawyers may be “subject to criminal penalties for false and malicious reports or complaints filed with the State Bar.” As a practical matter, some reporting lawyers may worry about the optics of reporting opposing counsel, especially in the middle of a contentious case, even when required by the rule.

No doubt anticipating reluctance, rule 8.3 Comment [4] recognizes the value of good judgment, providing that rule 8.3 “limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.” Accordingly, it emphasizes prioritizing the seriousness of the offense over the known “quantum of evidence.”

In the balance, rule 8.3 is an important addition to the California Rules of Professional Conduct, providing guidance on how lawyers can best protect their clients, the public, their peers and themselves.