The California State Bar, alone among the state lawyer licensing authorities, has not adopted the American Bar Association 's rule requiring lawyers to report their knowledge of another attorney's ethical fitness to practice. The ABA Model Rule Provides in part:Rule 8.3: Reporting Professional MisconductMaintaining The Integrity of The Profession(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.But, reeling under the impact of treports of the State Bar's failure to respond to grossly unethical conductby two high profile attorneys - Thomas Girardi and Michaal Avenatti - the State Bar has proposed that the Supreme Court of California be obligated to report misconduct or unfitness of which they have knowledge. The the State Bar is a governmental body but the state's Supreme Court will decide any changes. - GWC
New California Rule Compelling Attorneys to Report Misconduct by Other Attorneys to Circulate for Public Comment - The State Bar of California - News Releases
At its meeting on March 16, 2023] 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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