SB 42: SILENT NO MORE

by Hannah K. Brown and Gary A. Praglin

Increased focus on California attorney ethics in recent years has brought attorneys' professional misconduct to the forefront. Proposed California Senate Bill 42 (Umberg) is an extension of such focus. The Bill proposes to put a stop to attorney silence about professional misconduct. However, as discussed below, the current version of the Bill raises many unanswered questions about the practical application of the proposed new rule.

Senate Bill 42, introduced by Senator Tom Umberg, D-Santa Ana, on Dec. 5, 2022, proposes to amend the Business and Professions Code by adding a Section 6090.8, under Chapter 4 (Attorneys), Article 5.5 (Miscellaneous Disciplinary Provisions).

Proposed Section 6090.8 would read, in whole:

(a) A licensee of the State Bar who knows that another licensee has engaged in professional misconduct that raises a substantial question as to that licensee's honesty, trustworthiness, or fitness as an attorney in other respects, shall inform the State Bar.

(b) This section does not require disclosure of information otherwise protected by the attorney-client privilege or information gained by a licensee while participating in the Attorney Diversion and Assistance Program.

For most attorneys around the country, this language (or some version of it) looks familiar. It closely mirrors American Bar Association Model Rule 8.3: Reporting Professional Misconduct. To that end, as of November 2022, California remains the only jurisdiction that does not have this or a similar rule in place. (American Bar Association, Variations of the ABA Model Rules of Professional Conduct, CPR Policy Implementation Committee.) All 49 other states and the District of Columbia already have some form of Model Rule 8.3. (Id.) In that sense, SB 42 is a well-intentioned step in the right direction.

While proposed Section 6090.8 includes the dreaded word "shall" - mandating that State Bar licensees report one another's misconduct - there is notably no disciplinary provision to the statute.

Other nearby code sections, on the other hand, specifically mandate discipline. Bus. & Prof. Code, § 6090.5(a) calls for "suspension, disbarment, or other discipline" for certain acts. Section 6091 requires the State Bar to investigate any client complaint alleging mishandling of trust funds. Section 6093 allows revocation of probation for any violation of probation conditions. Yet there is no enumerated penalty in SB 42 for knowing of another attorney's professional misconduct and failing to report it. Of course, the State Bar maintains authority under Bus. & Prof. Code, § 6077 to discipline any licensee for a willful breach of any of the Rules of Professional Conduct. This raises the question: is it willful to continue to remain silent about attorney professional misconduct? Time will tell as the practical application of the rule unfolds, if the Bill passes.

Proposed Section 6090.8 also gives deference to the State Bar licensee who knows of professional misconduct by another. It does not mandate reporting of any professional misconduct; the misconduct must raise a "substantial question as to that licensee's honesty, trustworthiness, or fitness as an attorney in other respects." It requires a judgment call by the reporting attorney - does the misconduct rise to the level of questioning (substantially) the attorney's honesty and trustworthiness? Fitness to practice? Those are serious concepts in our profession; we would rather vaguely accuse each other of "bad faith" than call another attorney a liar, even when seeking sanctions.

SB 42 leaves questions yet to be answered: What constitutes a "substantial question?" What happens to attorneys who don't report? What happens if I know an attorney should have reported someone under Section 6090.8; am I too in violation of Section 6090.8 for not reporting them? What happens when opposing counsel report each other out of spite? Will the offending attorney be informed about the report and the identity of the reporter? What is the State Bar's duty upon receiving the report; must it investigate?

One of the benefits of being last in line to adopt the model language is that every other jurisdiction has already seen and dealt with these issues and questions. None of these potential hurdles are novel, and the State Bar and attorneys have a breadth and depth of out-of-state case law and law review articles to turn to for guidance.

Given the critical questions raised, and particularly given the subject of the proposed statute, it is reasonable to expect that if SB 42 is enacted, it will become the subject of litigation. What is clear is that SB 42 is intended to and would protect clients, and California is behind the curve on enacting this rule.

Hannah K. Brown is a senior associate, and Gary A. Praglin is a partner at Cotchett Pitre & McCarthy LLP.