California Eyes Adoption of Mandatory Reporting Rule

This article was originally published January 23, 2023.

At its January 13, 2023 meeting the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) approved a new rule to be added to the California Rules of Professional Conduct, which would mandate lawyers who know of another lawyer’s misconduct to report that lawyer’s actions to the State Bar. The proposed Rule 8.3, which has been circulated for public comment would read as follows:

Proposed Rule 8.3 Reporting Professional Misconduct

(a) A lawyer shall inform the State Bar when the lawyer has personal knowledge that another lawyer has committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects as prohibited by rule 8.4(b).

(b) For purposes of this rule, “personal knowledge” is distinct from the definition of “[k]knowingly,” “known,” or “knows” under rule 1.0.1(f) and is limited to information based on firsthand observation gained through the lawyer’s own senses.

(c) This 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, subdivision (e) and rules 1.6 and 1.8.2; the lawyer-client privilege; or by other rules or laws, including information that is confidential under Business and Professions Code section 6234.

The proposed rule is based on ABA Model Rule 8.3, which similarly requires lawyers to report another lawyer’s misconduct, if the reporting lawyer knows that another lawyer has engaged in conduct that casts doubt about the lawyer’s honesty, trustworthiness or fitness as a lawyer. California is the only state that has not adopted a version of Rule 8.3. Notably, California’s proposed version of Rule 8.3 is narrower than the Model Rule and the one adopted by most other jurisdictions. Whereas Model Rule 8.3 only requires a lawyer to “know” that another lawyer has committed certain misconduct (which can include knowledge that can be “inferred from the circumstances” as defined in Model Rule 1.0(f)), the California rule would require a lawyer two have “firsthand observation” before being required to report another lawyer’s misconduct. The proposed rule change comes in the wake of the California State Bar coming under intense scrutiny from the public and the California Legislature in the wake of reports that the Bar mishandled complaints against high-profile plaintiff’s lawyer Tom Girardi, who was discovered to have stolen millions of his clients’ funds.