Oct. 24, 2023
Addressing misconceptions and practical application under Rule 8.3
Every other jurisdiction has in place a version of American Bar Association Model Rule 8.3, and California’s rule includes the narrowest mandatory reporting obligation of any United States jurisdiction. Lawyers should be able to navigate their new obligations by using Rule 8.3’s balanced approach, which limits required reporting to the most serious misconduct, provides exceptions to reporting to protect clients, and allows for lawyers to determine their reporting obligations by consulting other lawyers and ethics hotlines.
Program Director, State Bar Office of Professional Competence
The legal community is buzzing with discussions about new California Rule of Professional Conduct 8.3, and the Daily Journal has published numerous articles on the subject. In these, including the most recent published on October 18th, "Am I my brother's keeper? Seeking Golden Snitches in the Golden State," there are misconceptions about Rule 8.3's practical implementation and the scope of the reporting obligations it imposes.
In considering California's new Rule 8.3, there are two important things to keep in mind. First, every other jurisdiction in the United States has in place a version of American Bar Association Model Rule 8.3 - California is the last in the nation to adopt a version of this rule and has the advantage of being able to look to interpretive law in a multitude of other jurisdictions. Second, California's rule includes the narrowest mandatory reporting obligation of any United States jurisdiction. It limits mandatory reporting to specified types of conduct and requires reporting even of those types of conduct only if it "raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer."
In "Am I my brother's keeper? Seeking Golden Snitches in the Golden State," the author offers two hypotheticals involving dishonesty and criminal acts occurring outside of the practice of law to speculate about how far the rule could reach, and to caution that the rule will be weaponized. The article does more to scare lawyers about their new professional obligations than to provide any real guidance.
As stated in the rule itself, Rule 8.3 does not mandate reporting of every instance of misconduct, but only those that are directly relevant to an attorney's professional capacity. An attorney who occasionally fishes without a license or cheats at cards at a colleague's home generally would not fall within the scope of this rule. These activities do not inherently raise questions about their fitness as a lawyer. The scope and nature of the conduct matter. Cheating in a friendly card game will lose you friends; cheating at a casino is a felony.
The State Bar recognizes that some less scrupulous lawyers may try to exploit the rule to gain a tactical advantage. But this is true of other rules as well. Rule 8.3 points to several other longstanding obligations that prohibit abuse of the complaint process in the discipline system, including rule 3.10, which prohibits threatening criminal, administrative, or disciplinary charges to gain an advantage in a civil dispute, and Business and Professions Code section 6043.5, which makes it a misdemeanor to present a false and malicious disciplinary complaint. The State Bar takes these concerns seriously, is monitoring the impact of rule 8.3, and will carefully examine complaints to ensure they are not for improper purposes.
Rule 8.3 is meant to uphold the high ethical standards of the legal profession. As the "Golden Snitch" article recognizes, this is the right intent, and it is essential for attorneys to exercise their professional judgment, and to consider the credibility of evidence and the seriousness of the conduct in question in determining whether reporting is required. The State Bar has and will continue to help lawyers navigate their new reporting responsibilities. With a balanced approach that limits required reporting to the most serious misconduct, provides exceptions to reporting to protect clients, and allows for lawyers to determine their reporting obligations by consulting other lawyers and ethics hotlines, lawyers should be able to navigate their new obligations. If so, Rule 8.3 will do what it was intended to - root out bad actors to protect the public and to promote trust and integrity within the legal profession.
Erika Doherty is program director, State Bar Office of Professional Competence, and George Cardona is chief trial counsel, State Bar of California.