New Rule 8.3 of the California Rules of Professional Conduct (CRPC) provides that “[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.” CRPC 8.3(a).
Whether to report to a tribunal (instead of the State Bar) will depend on whether the misconduct arises during litigation and whether the tribunal overseeing that litigation has the power to “investigate or act upon such misconduct.” For example, if a case is being heard by a private arbitrator instead of a judge, a report to the State Bar may be necessary. CRPC 8.3, Comment [6].
CRPC 8.3 carves out from the reporting requirement “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.” CRPC 8.3(c). The rule does not require or authorize disclosure of information gained by a lawyer while participating in a substance use or mental health program or require disclosure of information protected by:
- Business and Professions Code section 6068(e) and CRPC 1.6, 1.8.2;
- Mediation confidentiality;
- The attorney-client privilege;
- Other applicable privileges; or
- Other applicable rules or laws.
Comment [2] to CRPC 8.3 specifies that the reporting obligation does not apply to a lawyer who is consulted by another lawyer regarding the lawyer’s own conduct or the duty to report the conduct of another lawyer. Nor does the reporting obligation apply if the information is obtained by a lawyer while participating as a member of a state or local bar association ethics hotline or similar service.
Comment [4] to CRPC 8.3 states that the rule only applies to “those offenses that a self-regulating profession must vigorously endeavor to prevent” and advises that a “measure of judgment is [] required” in complying with the rule.
CRPC 8.3(b) provides that a lawyer “may, but is not required to, report to the State Bar a violation of” the Rules of Professional Conduct that does not fall into the category defined in CRPC 8.3(a).
Notwithstanding CRPC 8.3, lawyers must be mindful of CRPC 3.10, which prohibits a lawyer from threatening to present criminal, administrative or disciplinary charges to obtain an advantage in a civil dispute. This may present a challenge to a lawyer who becomes aware of reportable offenses committed by the opposing lawyer in an ongoing civil suit.
Notably, California previously rejected similar lawyer misconduct reporting rules on two occasions. The commentary surrounding the Rule has been mixed, with some referring to it as the “snitch” rule and others speculating that the Rule is in response to the fallout from the Thomas Girardi scandal.
CRPC 8.3 is effective as of August 1, 2023.
Kaitlin Robinson is an associate in the Complex Litigation Group at Arnold & Porter. She represents employers against claims of discrimination, retaliation, wage and hour law violations, and state law torts and counsels clients on various employment law matters. Ms. Robinson also defends law firms and law firm partners against malpractice claims and advises attorneys on ethics questions.