Do Superior Court judges have a role to play in the new ‘snitch rule?’

Much has been written to explain the new ‘snitch rule.’ (Cal. Rules of Prof. Conduct, rule 8.3). But expectations for the role of the trial courts may be confusing to lawyers with a duty to report.

Rule 8.3 imposes reporting duties on lawyers who know of certain types of misconduct that raise a substantial question as to another lawyer’s honesty, trustworthiness, or fitness. The duty is fulfilled by informing “the State Bar, or a tribunal with jurisdiction to investigate or act upon such misconduct.” (Rule 8.3(a).) The commentary explains, “A determination whether to report to a tribunal, instead of the State Bar, will depend on whether the misconduct arises during pending litigation and whether the particular tribunal has the power to ‘investigate or act upon’ the alleged misconduct.” (Comment [6].)

The role of a trial court is to adjudicate, not to investigate. Judges cannot question witnesses independently of courtroom proceedings, nor can they engage in ex parte communications. They are to avoid embroilment. Any presentation of evidence needs to come from the parties in the case pursuant to a relevant motion or hearing.

In the State Bar education materials available through its website, two examples are provided regarding where to report misconduct. (See “Rule 8.3 Reporting Scenarios” and “Lesson Plan - Reporting Obligations: Navigating New Rule 8.3” contained in a Toolkit that can be requested from the Bar.) The examples involve discovery disputes where a lawyer has credible evidence that opposing counsel made intentional misrepresentations to the court. This knowledge gives rise to a duty to report under rule 8.3 and can be satisfied by filing a complaint with the State Bar.

However, the State Bar materials advise the attorney also can satisfy the duty by reporting the conduct to the court before which the litigation is pending. The implication is the court would adjudicate the matter via a discovery sanctions motion and hearing. Such a procedure could certainly be appropriate and present a proper role for the court, so long as the motion is noticed and both sides have the opportunity to be heard. Depending on the result of the hearing, reporting obligations for the court may be triggered. (See Bus. & Prof. Code, sec. 6086.7, 6068.8 and Cal. Code of Jud. Ethics, canon 3D(2).)

What would not be appropriate is for the court to do its own investigation. The language of the rule is confusing in this regard. Although it refers to a tribunal having jurisdiction to investigate, lawyers should not presume the court can or will do so. Conducting its own investigation would tend to embroil the court in the controversy and cause the judge to surrender the role of impartial factfinder and decisionmaker.

Apart from a discovery sanctions motion, it is difficult to imagine when a court would be the proper tribunal for Rule 8.3 reporting. It is possible a report of misconduct in litigation might trigger a contempt hearing. But contempt is designed to address violations of court orders, not the type of misconduct outlined in Rule 8.3. Violations of the Rules of Professional Conduct alone do not give rise to a basis for sanctions from the trial court. (See Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1483.) As noted in Becerra, “[n]ormally, the trial courts do not have the responsibility of directly enforcing the rules of professional responsibility” as disciplinary authority has been delegated to the State Bar Court by the Supreme Court. (Id.)

Considering the limited role of the trial court in disciplinary matters, when a lawyer knows of misconduct falling within Rule 8.3, a report to the State Bar is the surest way of complying with reporting duties.