April 2023 Ethically Speaking - California’s Proposed New Tattletale Rule

By Scott B. Garner

Cindy, you know by tattling on your friends, you’re really just tattling on yourself. By tattling on your friends, you’re just telling them that you’re a tattletale. Now is that the tale you want to tell? ~ Mike Brady (from the Brady Bunch)

Nobody likes a tattletale. Until now, California has avoided a rule that requires lawyers to be tattletales, tattling on their colleagues and opposing counsel. It looks like that will soon change, and lawyers indeed will be required to report other lawyers to the State Bar.

For years the ABA Model Rules, and most states, have required lawyers to report unethical behavior of other lawyers. ABA Model Rule 8.3 states, “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.” California has been the outlier, not having any version of Rule 8.3—either before or since the November 2018 revisions to its Rules of Professional Conduct. The case against Thomas Girardi apparently is changing that.

When allegations came to light that Girardi was stealing millions of dollars from his clients, lawmakers and lawyers alike justifiably were horrified. They asked, how could this have been prevented? What can be done to make sure nothing like this ever happens again? One attempt to answer these questions was the introduction of Senate Bill 42. Not trusting the State Bar to address the situation on its own, the legislature proposed a bill requiring lawyers to report other lawyers, much like the rules that exist in other states. The thinking was that other lawyers working with Girardi must have known what was going on, and they should have reported his transgressions to the State Bar. This, of course, is flawed logic.

The reality is that the State Bar received over 200 complaints about Girardi and did virtually nothing about them. So the problem was not the lack of reporting, but rather the lack of follow-through on that reporting. Why the State Bar did nothing to address these obvious concerns can be left to speculation (which this article declines to do), but it should be clear to anyone paying attention that having a few more complaints about Girardi lobbed into the State Bar was unlikely to accomplish anything.

Nevertheless, Senate Bill 42 was introduced on December 5, 2022. Shortly thereafter, the State Bar’s standing Committee on Professional Responsibility and Conduct (COPRAC), acting at the request of the State Bar, released for an abbreviated public comment period its own version of Rule 8.3. This appears to be an effort by the State Bar (and COPRAC) to get ahead of the legislature to prove that the profession does not need the interference of the legislature, but rather, can get its own house in order. The competing versions of Rule 8.3 are different in some important respects, however.

First, SB 42 does not technically seek to propose or pass a new Rule of Professional Conduct, as that is something that must be done by the State Bar and/or the California Supreme Court. Nonetheless, SB 42 seeks to impose a requirement on lawyers that is effectively the same as one that would be imposed by a new Rule of Professional Conduct. Under the current version of SB 42, with certain limited exceptions, a lawyer “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.” This is somewhat similar to ABA Model Rule 8.3, discussed above, in that it is based on knowledge of professional misconduct. Since SB 42 is still in its early stages, it is anticipated that it will be amended and/or narrowed as it makes its way through the legislative process.

By contrast, COPRAC’s proposed Rule 8.3 is not based on a lawyer knowing that another lawyer has engaged in professional misconduct. Rather, proposed Rule 8.3 is more narrowly drafted, limiting a lawyer’s reporting obligation to “when the lawyer has personal knowledge that another lawyer has committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. . . .” (emphasis added). Both of these distinctions are significant and helpful.

Rule 1.0.1(f) defines “knowingly,” “known,” or “knows” as “actual knowledge of the fact in question.” It goes on to say, “A person’s knowledge may be inferred from the circumstances.” COPRAC expressly rejected this definition, opting instead for a “personal knowledge” standard, which would be “limited to information based on firsthand observation gained through the lawyer’s own senses.” The purpose appears to be to eliminate guessing as to when a lawyer actually knows something. The proposed rule does not, however, clarify whether the lawyer’s personal knowledge pertains to the other lawyer’s act (e.g., the lawyer saw another lawyer commit a particular act) or whether it also pertains to whether that act is criminal. A lawyer without a criminal law background may know that a lawyer did something untoward, but may not know if that untoward act rises to the level of a criminal act. If that lawyer in good faith believes the act is not criminal, and thus declines to report, is the lawyer in trouble if it turns out his belief was wrong? How much criminal law research must a lawyer do before deciding whether he is obligated to report?

Of course, there is no bar to reporting even non-criminal behavior to the State Bar; thus, the safer course may be to report any improper conduct that arguably reflects on the lawyer’s honesty, trustworthiness, or fitness, whether or not the conduct is criminal. But is this really the result we want? The State Bar has famously been underwater with its investigation and prosecution duties for years, to the chagrin of even the legislature. Passing a statute or rule that mandates—or even encourages—additional reporting would only increase the State Bar’s backlog, thereby exacerbating rather than diminishing one of the legislature’s biggest complaints about the State Bar’s disciplinary process.

Yet another concern with a rule that mandates or encourages reporting is that unscrupulous, uncivil lawyers (and we all know they are out there) would use this as an excuse to report their opposing counsel for all sorts of perceived transgressions. “I didn’t want to report you for noticing that deposition in Orange County rather than in Los Angeles, but I believe I am compelled to do so by Rule 8.3 as your actions demonstrate your untrustworthiness.” Is that really so far-fetched? Is that something the State Bar is equipped to deal with?

Thus, even though COPRAC’s proposed limitation to criminal conduct, rather than to professional misconduct, is a step in the right direction, it is not without its problems, particularly where many lawyers won’t have a good handle on which misconduct is criminal and which is not. Take another potential, not-so-far-fetched example. Suppose two lawyers are engaged in contentious meet-and-confer discussions over discovery responses. When those meet-and-confer efforts fail, one of the lawyers files a motion to compel, including a declaration from the lawyer detailing the meet-and-confer discussions. The other lawyer—who was on the call, and thus has personal knowledge of what was said—believes the first lawyer has misconstrued certain facts in her declaration. In other words, the lawyer has personal knowledge that his opposing counsel committed perjury. As currently drafted, Rule 8.3 would require the lawyer to report his opposing counsel to the State Bar. Over a discovery dispute. And while perjury is a serious issue, the number of times a lawyer believes his opposing counsel lied or exaggerated in a declaration is probably too high to count. Again, this will not help the State Bar make progress on its backlog of complaints and investigations.

Finally, some argue that the impact on the State Bar from passing Rule 8.3 (in whatever version) will be minimal because the State Bar is unlikely to discipline lawyers for failing to report. And the anecdotal history from other states supports that hypothesis. But if that is the case—if the State Bar is not going to discipline lawyers who fail to report when they are otherwise obligated to do so—then why have the rule at all? It makes no sense to pass a rule that nobody plans to enforce. Thus, in analyzing and discussing the proposed rule, lawyers have to assume it indeed will be enforced.

In the wake of Girardi’s case, the political pressure to pass some sort of tattletale rule may be too much to ignore. Which version of the rule ultimately emerges remains to be seen. Whichever version emerges, however, it is unlikely to advance civility. Nobody likes a tattletale.

Scott B. Garner is a partner with Umberg/Zipser LLP in Irvine, California. He practices complex business litigation, with a focus on lawyer liability and ethics counseling. Scott was the 2020 President of the OCBA, a former chair of the California State Bar’s standing Committee on Professional Responsibility and Conduct (COPRAC), and a current co-chair of the OCBA Professionalism and Ethics Committee. He can be reached at sgarner@umbergzipser.com.