Proposed New Rule of Professional Conduct 8.3

The State Bar seeks public input on alternatives for a Proposed New Rule of Professional Conduct 8.3

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Deadline: May 4, 2023, 11:59 p.m.

Background

At the November 17, 2022, Board of Trustees’ meeting, Board Chair Ruben Duran directed the State Bar Committee on Professional Responsibility and Conduct (COPRAC) to prepare a proposal for a new Rule of Professional Conduct addressing a lawyer’s duty to report the misconduct of another lawyer. COPRAC was asked to consider American Bar Association (ABA) Model Rule 8.3 and the adoption of that rule, and variations thereof, by other jurisdictions, as well as past consideration of Model Rule 8.3 by the State Bar and its Commission for the Revision of the Rules of Professional Conduct. 

On January 13, 2023, COPRAC approved a proposed new rule 8.3 to be issued for a 30-day public comment hearing and held a public hearing on February 15, 2023. After the public comment period, on March 3, 2023, COPRAC voted to recommend a revised proposed rule to the Board of Trustees. The COPRAC proposed rule 8.3 (Alternative 1) and a staff-prepared alternative proposed rule 8.3 (Alternative 2) were provided to the Board, with the request that both alternatives be issued for a 45-day public comment period. 

The State Bar seeks public comment on both alternatives, including input on which alternative is preferred.   

Discussion/proposal

Alternative 1 of Proposed New Rule 8.3 would require that a lawyer shall, without undue delay, inform the State Bar when the lawyer knows of credible evidence that another lawyer has committed a criminal act, engaged in fraud, or misappropriated funds or property in violation of rule 1.15 when that conduct raises a substantial question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. 

Alternative 2 of Proposed New Rule 8.3 would require that a lawyer shall, without undue delay, inform the State Bar when the lawyer knows of credible evidence that another lawyer has (1) committed a criminal act that reflects adversely on that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; or (2) engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property. 

Both alternatives would: 

  • Make it clear that a lawyer must report another lawyer’s misconduct to the State Bar as soon as the lawyer reasonably believes the reporting would not cause material prejudice or damage to the interests of their client or a client of the lawyer’s firm.  
  • Make it clear that a lawyer may, but is not required to, report other violations of the Rules of Professional Conduct or the State Bar Act in addition to those that must be reported by the rule. 
  • Except from the duty to report conduct that would be a criminal act in another state, U.S. territory, or foreign jurisdiction, but that is not a crime in California.  
  • Except from the duty to report information received by the lawyer while participating in a substance use or mental health program; and 
  • Except from the duty to report information that is protected by other rules or laws, including, but not limited to, the duty of confidentiality, mediation confidentiality, the attorney-client privilege, and other applicable privileges. 

At its March 16, 2023, meeting, the Board approved circulating for public comment for a 45-day period Alternatives 1 and 2 of proposed new rule 8.3.  

Any fiscal/personnel impact

None. 

Background material

Source

Board of Trustees

Deadline

May 4, 2023, 11:59 p.m.

Direct comments to

[This comment process has been archived. View the interactive dashboard of public comment submissions.]