PROPOSED RULE FOR ATTORNEYS TO REPORT MISCONDUCT BY OTHER ATTORNEYS
TELL US WHAT YOU THINK
Should California establish a rule that requires attorneys to report to the State Bar of California when they know that another California attorney has committed a crime or other misconduct?
Why We Need Your Views
Your feedback is important because it helps ensure that State Bar policy is informed by the public we serve.
How It Is Now The California Rules of Professional Conduct guide and regulate the conduct of lawyers licensed to practice in California. If a lawyer violates a rule, they could be subject to discipline.
California is the only state without a rule requiring lawyers to report any misconduct they see by another lawyer. Most states use some version of the model rule on this topic created by the American Bar Association, called ABA Model Rule 8.3.
The ABA Model Rule ABA Model Rule 8.3 is very broad. A bill introduced in California (Senate Bill 42) proposes that California adopt this broad standard in statute. ABA Model Rule 8.3 has the following requirements and exceptions:
The State Bar is circulating for comment the ABA model rule as well as two options for a California rule. Here’s what the California options have in common:
Duty to report based on credible evidence
A lawyer must have actual knowledge of credible evidence of the misconduct. Knowledge may be inferred from circumstances.
Lawyer must report without undue delay
As soon as a lawyer reasonably believes reporting will not cause material prejudice or damage to their client or a client of their firm.
Other violations can be reported
A lawyer may report other violations of the Rules of Professional Conduct or State Bar Act in addition to what must be reported.
Exceptions to required reporting
Information gained in substance use/ mental health program.
Information protected by confidentiality, privilege, or other rules or laws.
The main differences between the two alternatives are the types of conduct that must be reported and the threshold for that mandatory reporting.
California Alternative 1
The first option was developed by the State Bar’s Committee on Professional Responsibility and Conduct (COPRAC). This committee addresses legal ethic topics, including studying and recommending changes to the rules of professional conduct. This proposal is narrower than the ABA model rule.
California Alternative 2
State Bar staff have proposed a middle-ground option. It is narrower than the ABA model rule in most respects but broader than Alternative 1.
Arguments for or against
Some of the reasons the rule is being considered, and concerns that have been expressed about this type of rule:
Reasons for such a rule...
- Will enhance public protection, as attorneys are often the first to know when other attorneys are committing misconduct.
- Other states that have adopted such a rule have not seen the negative effects that opponents are concerned about.
- This duty to report is similar to ethical obligations in other professions, such as medicine.
Among concerns...
- California is more highly litigious than other states, so this rule may not work the same as it does in other states.
- Has the potential to be weaponized and could increase incivility in the profession.
- Could increase complaints to an already overburdened disciplinary system.
- The term “criminal act” is vague and puts a burden on the reporting attorney to know or learn criminal law.
What do you think?
Should California create such a rule? If so, do you have a preference between the model rule, Alternative 1, or Alternative 2?
The public comment period for this proposal ended on May 4, 2023.
View interactive dashboard of the public comment submissions.