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New California Rule Compelling Attorneys to Report Misconduct by Other Attorneys to Circulate for Public Comment

At its meeting on March 16, the State Bar of California Board of Trustees approved a 45-day public comment period for two options for a new rule that would create a duty for California attorneys to report misconduct by other attorneys.

"We want to hear from the public about whether it is time for California to join the rest of the nation in implementing some version of a rule establishing a duty for attorneys to report misconduct by their professional peers,” said Board Chair Ruben Duran. “I believe the public we are mandated to protect will be the ultimate beneficiaries of this proactive effort.”

California is the only state that has yet to adopt some version of the American Bar Association (ABA) Model Rule 8.3, which establishes a duty to report misconduct that “raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

Since 2010, California has twice considered and rejected such a rule due to concerns raised by attorneys. The new California proposal was developed at the direction of Board Chair Duran at the November 2022 Board meeting. The Committee on Professional Responsibility and Conduct developed and circulated for public comment a proposed rule that was then revised and adopted for submission to the Board. Additionally, staff proposed an alternative version with a slightly broader set of reporting requirements.

Both alternatives require reporting if a lawyer knows of credible evidence of misconduct. The primary differences between the two alternatives are the types of conduct that must be reported and the trigger for that mandatory reporting:

• Alternative 1: Requires reporting:
  • Of criminal acts, fraud, or misappropriation of funds or property in violation of rule 1.15 and;
  • If the conduct raises a substantial question as to an attorney’s honesty, trustworthiness, or fitness as an attorney in other respects.
• Alternative 2: Expands the type of conduct that must be reported to include acts of dishonesty, deceit, and misrepresentation. There is no requirement that the misconduct that must be reported must “raise a substantial question,” but the duty to report criminal acts arises only if such acts reflect adversely on an attorney’s honesty, trustworthiness, or fitness as an attorney in other respects.

Both alternatives include exceptions if reporting would disclose confidential information protected by other rules or laws, such as client confidentiality or attorney-client privilege. Information obtained by a lawyer participating in any substance use or mental health program would also be exempt.

After the public comment period, the Board is expected to consider the public input and rule proposal at its May meeting before sending a proposed rule to the California Supreme Court for its consideration. The Supreme Court must approve a rule before it becomes final.

The state Legislature is also considering a bill, Senate Bill 42, which would establish a statutory duty for attorneys to report misconduct by other attorneys. Currently the bill reflects the same duty to report as outlined in ABA Model Rule 8.3.

Also during the meeting, Executive Director Leah Wilson previewed efforts being made to strengthen the State Bar’s whistleblower and whistleblower retaliation policy. The effort is among numerous reforms that have been undertaken by the State Bar, as noted in a reform chronology shared last week with the announcement regarding the May and Lazar reports into past handling of closed complaints against now-disbarred attorney Thomas V. Girardi.

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The State Bar of California's mission is to protect the public and includes the primary functions of licensing, regulation and discipline of attorneys; the advancement of the ethical and competent practice of law; and support of efforts for greater access to, and inclusion in, the legal system.