New CRPC Rule 8.3 that mandates we report each other raises the specter of Soviet Big Brother tactics

California Rules of Professional Conduct Rule 8.3, recently approved by the California Supreme Court, is sure to evoke controversy. Under this Rule, members of the California State Bar are now obligated to report “without undue delay” to the presiding tribunal or the Bar not only other lawyers’ criminal acts and reckless or intentional misappropriation of client funds, but also other conduct that “raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer.” The Rule goes into effect Aug. 1; it does not expressly limit itself to misconduct occurring after adoption and may therefore be interpreted to have retroactive application. There are important limitations on the duty to report, discussed infra.

On the one hand, ours is the last state to adopt a version of the corollary American Bar Association Model Rule 8.3, which has been derisively referred to as the “Rat” Rule. (The Bar is not the only California authority advancing reform: Senate Bill 40, passed with unanimous support and currently under consideration by the Assembly Judiciary Committee, proposes adding section 6090.8 to the Business and Professions Code that would similarly trigger a mandate that attorneys report other attorneys’ misconduct, with an additional express duty to report attorneys who have conspired or engaged in “treason, sedition, or insurrection against the State of California or the United States.”) Moreover, the California State Bar is still reeling from the scandal surrounding Thomas Girardi. Girardi, considered one of the country’s finest “toxic tort” attorneys, was part of the legal team lionized in the 2000 film, “Erin Brockovich.” For those who haven’t followed the more recent scandal, before being disbarred in June of last year and being indicted in February on charges of embezzlement of more than $15 million from client funds, Girardi funneled more than $1 million in cash and gifts to the Bar; this, while numerous misconduct complaints had been made to that same body, none of which had resulted in any public discipline and the vast majority of which had been closed without discipline of any kind.

In 2021, the Bar initiated a probe and retained a prominent Ventura County attorney to review 115 complaints filed against Girardi from 1982 to 2021. Bar Trustee Chair Ruben Duran explains, “To ensure that what happened in the Girardi matter never happens again, we commissioned unflinching investigations by outside experts, are making the results public to the extent we can legally do so, and are addressing the findings comprehensively … [T]he magnitude and duration of the transgressions reveal persistent institutional failure and a shocking past culture of unethical and unacceptable behavior. In recent years we have put in place many safeguards that serve both to prevent unethical or corrupt behavior and – if it does occur – to catch and address it quickly.”

On the other hand, to the extent that new Rule 8.3 might be a reaction to these recent events, the Girardi scandal was not caused by a reluctance to report. Rather, the “systemic organizational dysfunction” described in the Bar’s self-audit resulted from decades of relative passivity in investigating complaints against Girardi and the likely influence of the now-disgraced attorney’s efforts to buy relationships with those who were responsible for safeguarding the public from his misconduct. And the rule raises the specter of Soviet Big Brother tactics, where neighbors are coerced to denounce neighbors in order to themselves avoid state persecution, a spookocracy similar to that described in George Orwell’s dystopian novel, “1984.”

Superficially, the new reporting mandate might appear to conflict with Rule 3.10, precluding California lawyers from “threaten[ing] to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” New Rule 8.3, however, incorporates Rule 3.10 (Rule 8.3, Comment 8), and thus does not abrogate the prohibition against threats. Comment 10 to the Rule cites Business & Professions Code section 6094(a), pursuant to which “[c]ommunications to the State Bar relating to lawyer misconduct or disability or competence, or any communication related to an investigation or proceeding and testimony given in the proceeding are privileged, and no lawsuit predicated thereon may be instituted against any person.” But the Rule also cites Business & Professions Code section 6043.5(a), which provides, “Every person who reports to the State Bar or causes a complaint to be filed with the State Bar that an attorney has engaged in professional misconduct, knowing the report or complaint to be false and malicious, is guilty of a misdemeanor.” Thus, reporters arguably enjoy immunity from criminal or civil prosecution, but only assuming an absence of falsity or malice.

The Rule contains several important limitations, as follows.

First, lawyers need only report when they are aware of “credible evidence” of misconduct. Rule 8.3(a). The “substantial question” criterion refers to the seriousness of the possible offense and not the “quantum of evidence” of which the lawyer is aware. Rule 8.3, Comment 4. “Knows” means actual knowledge of the fact in question, although such knowledge may be inferred from the circumstances. Rule 1.01(f).

Second, the Rule incorporates several broad exceptions, in that the reporting obligation does not extend where the relevant information is privileged by other rules or laws, including the duty of confidentiality, mediation privilege, and the lawyer-client privilege. Further, no report need be made when the information is obtained while participating in a substance use or mental health program. Rule 8.3(d). Pursuant to these rules and laws, in many cases a lawyer who knows otherwise reportable information will not only be relieved from the duty of reporting under Rule 8.3 but will be precluded from reporting such information.

Finally, the duty to report does not extend to conduct that is not a crime in California but would be a criminal act in another state (e.g., cannabis use or abortion). Rule 8.3(c).

The American Bar Association echoes our pain: “The Committee is mindful of the awkwardness and potential discomfort of reporting the misconduct of a colleague. The difficulty confronting the lawyer in that situation may be even more acute if the lawyer to be reported is a superior of the lawyer making the report. Whether employed in a law firm, a corporate law department, on a law school faculty, or elsewhere, the lawyer may be facing the same dilemma: jeopardize her career by making the report, or jeopardize it by remaining silent in violation of the rules of ethics.” ABA Formal Opn. 04-433.

As always, good judgment is key: The Rule is intended to require lawyers to report only “those offenses that a self-regulating profession must vigorously endeavor to prevent,” and thus a “measure of judgment” is required. Rule 8.3, Comment 4.