To tell or not to tell? Questions and concerns complying with the new 'snitch rule'

One of the most uncomfortable ethical dilemmas lawyers find themselves in involves wondering when to report another lawyer’s misconduct. Now that reporting professional misconduct is mandatory per the adoption of rule 8.3, this discomfort may lead to a referral for potential discipline. But since the implementation of the rule on Aug. 1, 2023, questions have arisen regarding some of its provisions, including what conduct to report, as well as to whom.

Fortunately, both the language of the rule, including the comments, as well as the State Bar’s 8.3 Toolkit (available upon request from the State Bar) provide information that can help interpret this new rule. However, the requirement that lawyers “snitch” on unprofessional peers is not as straightforward as the name would imply.

As California lawyers, we are actually assisted by our status as the last holdout state to adopt some version of ABA rule 8.3 because we are able to look to other jurisdictions for guidance.

Broadening our horizons

California Rule 1.0, Purpose and Function of the Rules of Professional Conduct, discusses the rationale behind and practical issues surrounding the application of our California rules. It also suggests other places California lawyers can look for ethical guidance. Rule 1.0 Comment [4] states:

“In addition to the authorities identified in paragraph (b)(2), opinions of ethics committees in California, although not binding, should be consulted for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

Because all other states adopted a version of 8.3 well before California, there is a rich body of case law and ethical opinions to consider when analyzing some of the issues of interpretation of California’s new rule.

Words matter: defining misconduct

California Rule 8.3 Reporting Professional Misconduct officially states:

“A lawyer shall, without undue delay, inform the State Bar, or a tribunal with jurisdiction to investigate or act upon such misconduct, when the lawyer knows of credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

In comparison, ABA rule 8.3 states in paragraph (a), “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” (emphasis added).

The fact that California has not mandated reporting of professional rule violations is a significant departure from the ABA. In fact California’s version of rule 8.3 is fairly narrow compared to many other jurisdictions. Paragraph (a) of rule 8.3 defines conduct that must be reported, while paragraph (b) gives lawyers the option of reporting peers who violate the rules of professional conduct or the State Bar Act, which has always been an option before the adoption of rule 8.3.

Consider the implications of this distinction as applied to suspected violations of other hot button rules, such as the rule prohibiting sexual harassment or unlawful discrimination. Rule 8.4.1 (a), Prohibited Discrimination, Harassment and Retaliation, prohibits unlawful harassment or discrimination against anyone “on the basis of any protected characteristic” or unlawful retaliation. It does not reference criminality or dishonesty. This means that per the text of 8.3, automatic reporting of a known violation of rule 8.4.1, is not mandatory, although there may be situations where conduct that violates 8.4.1 also involves the requisite level of criminality or dishonesty in rule 8.3.

Another area that is highly susceptible for peer complaints due to competition for clients which does not automatically come within the provisions of rule 8.3 relates to lawyer advertising. While a violation of rule 7.1, Communications Concerning a Lawyer’s Services, would fall within the obligations of 8.3 because it prohibits a “false or misleading communication about the lawyer or the lawyer’s services,” suspected violations of rule 7.2, Advertising, or rule 7.3, Solicitation of Clients would not – unless the conduct also involved the required level of criminality or dishonesty.

Knowledge is power: study the Rule, and State Bar resources

Although official statistics regarding reported violations of 8.3 are not yet available, lawyers should familiarize themselves with exactly what type of conduct rule 8.3 requires them to report, instead of automatically assuming any type of suspected wrongdoing is included. And it bears repeating that rule 8.3 Comment [10] states in part that lawyers may be “subject to criminal penalties for false and malicious reports or complaints filed with the State Bar.”

Taking advantage of State Bar resources as well as examples from other jurisdictions will enable California lawyers to competently consider how to incorporate 8.3 as an important addition to the California Rules of Professional Conduct, providing guidance on how lawyers can best represent their own clients while protecting the public through peer accountability.