February 2024 Ethically Speaking - No One Likes a Snitch: Other Than the State Bar!

by Nicole Nuzzo

The California Supreme Court approved the so-called “snitch rule” and codified the same as Rule 8.3 of the California Rules of Professional Conduct. For more background on the reasons and attempts to enact a version of the Model “snitch rule,” please see a previous column from April 2023. Garner, Scott, Proposed New Tattletale Rule, Orange County Lawyer, April 2023, https://www.ocbar.org/All-News/News-View/ArticleId/6435/April-2023-Ethically-Speaking-California-s-Proposed-New-Tattletale-Rule.

Since this rule took effect on August 1, 2023, there has been much confusion surrounding what this rule actually requires lawyers to report, when to report, and to whom to report. This article will explore California Rules of Professional Conduct Rule 8.3 and its exceptions to provide some clarity and understanding to lawyers faced with the decision to report or not to report.

This article cites to “Reporting Scenarios” published by the State Bar of California, which by its own terms, are said to be provided for educational purposes only and are not binding upon the courts, the State Bar of California, its Board of Trustees, any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.

Reportable Conduct
A lawyer must first know what types of conduct should be reported. California lawyers must report when they “know” 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.” Cal. Rules of Prof. Conduct, Rule 8.3(a). Lawyers know of such acts if they have actual knowledge of the fact in question, which can be inferred. Cal Prof. Rule of Conduct, Rule 1.0.1(f).

When needing to analyze this issue, a lawyer is thus left to determine whether a colleague’s behavior has risen to the level of criminal conduct and to further assess whether such behavior, even if not criminal, involves an act bearing upon the lawyer’s fitness as a lawyer.

In determining whether to report a colleague’s conduct, the lawyer must also consider the weight of the evidence. Only if the lawyer knows of credible evidence that another lawyer has committed a reportable act will the lawyer need to report the behavior.

For example, if a lawyer knows from an admission by the other lawyer that the other lawyer has deposited settlement proceeds in her operating account to cover her firm’s utilities, the lawyer must report because an admission would be credible evidence. But, a complaint that a lawyer is not returning a client’s telephone call for two weeks is not reportable when the third party lawyer does not know if significant developments have occurred within the two weeks (the duty to report the significant developments being the potential for a reportable violation under this circumstance). The State Bar of California, Office of Professional Competence, Rule 8.3 Reporting Scenarios, Scenario 1 and 2.

The weight of the evidence (an admission from the lawyer versus a client complaint without more) and the level of the offense will determine whether a lawyer’s conduct is reportable, subject to a number of exceptions explained below.

Whether to report can be a complicated matter sometimes tangled in contentious and active litigation. When a lawyer stumbles upon a question of whether to report, it is understandable that a second opinion would be desired. A lawyer may of course seek legal advice pertaining to ethical matters if she wishes. In fact, to encourage lawyers to seek such advice, the mandatory reporting rule does not apply to a lawyer “who is consulted about or retained to represent a lawyer whose conduct is in question, or to a lawyer consulted in a professional capacity by another lawyer on whether the inquiring lawyer has a duty to report a third-party lawyer . . . .” Cal. Rules of Prof. Conduct, Rule 8.3, Cmt. [2].

Of notable importance is the difference between California’s version of Rule 8.3 and ABA Model Rule 8.3. The Model Rule requires little judgment; however, the California version requires a lawyer to have knowledge or to assess the credibility of the evidence and, therefore, limits offenses which are mandated to report. See ABA Model Rule 8.3. California Rule of Professional Conduct 8.4 has been effective since November 1, 2018, and that rule prohibits a lawyer from committing similar acts to those identified by the “Snitch Rule” (i.e., Rule 8.3). For now, use of opinions interpreting Rule 8.4, while limited, may provide a lawyer guidance in her analysis with the caveat that Rule 8.4 prohibits conduct which “reflects adversely” on a lawyer’s honesty, etc., whereas Rule 8.3 mandates reporting for conduct that “raises a substantial question” as to the lawyer’s honesty, etc.

Once it is determined that conduct is reportable, a lawyer must next determine whether exceptions apply. The new “snitch rule” cannot be read in a vacuum as a lawyer has other obligations which, as noted below, sometimes trump the duty to report.

It is notable that the California version of the rule excludes criminal conduct that would be a criminal act in another jurisdiction but would not be a criminal act in California. Cal. Rules of Prof. Conduct, Rule 8.3(c). For example, cannabis use or undergoing an abortion may not be allowed in some jurisdictions, but do not constitute criminal acts in California.

The California rule also relieves a lawyer of the obligation to report if the information was received while participating in an ethics hotline or similar service, or a substance abuse or mental health program. Cal. Rules of Prof. Conduct, Rule 8.3(c), Cmts. [2], [5].

Lastly, the rule does not mandate reporting if the information is protected by Business and Professions Code section 6068(e) or Rule 1.6 (Duty of Confidentiality) or 1.8.2 (Use of Current Client’s Information); mediation confidentiality; the lawyer-client privilege; other applicable privileges; or by other rules or laws, including information that is confidential under Business and Professions Code section 6234 (confidentiality of information obtained by an attorney diversion and assistance program). Cal. Rules of Prof. Conduct, Rule 8.3, Cmt. [3]. In fact, reporting under these scenarios may result in discipline for violation of the applicable rule of professional conduct preventing a lawyer from doing so.

When to Report
If a lawyer determines she has a mandate to report, she must then analyze when she must report.

A lawyer is mandated to snitch “without undue delay” pursuant to the terms of Rule 8.3. This duty requires a lawyer to report as soon as the lawyer reasonably believes the reporting will not cause material prejudice or damage to the interest of a client of the lawyer or a client of the lawyer’s firm. Cal. Rules of Prof. Conduct, Rule 8.3, Cmt [3]. Reasonable belief means “the lawyer believes the matter in question and the circumstances are such that the belief is reasonable.” Cal. Rules of Prof. Conduct, Rule 1.01 (i).

It is worth noting that if a lawyer knows of credible evidence of another lawyer’s conduct which occurred prior to August 1, 2023, the lawyer still has a duty to report because the lawyer at this time (i.e., subsequent to August 1, 2023) knows of such information.

How and to Whom to Report
Lawyers who determine they have a duty to report may choose to report to the State Bar through an online complaint form found here: https://apps.calbar.ca.gov/complaint/.

In lieu of submitting a complaint to the State Bar, a lawyer may report to a tribunal with jurisdiction to investigate or act (if an active case is pending, for example). Comment [6] to Rule 8.3 suggests that if the tribunal is a non-judicial tribunal, such as a private arbitrator, reporting to the tribunal may not be sufficient.

When reporting to a tribunal, there has been no specific procedure set forth to date. That said, in published Reporting Scenarios, a lawyer’s upcoming sanctions hearing was referenced as an appropriate place to bring up the conduct with the tribunal. The State Bar of California, Office of Professional Competence, Rule 8.3 Reporting Scenarios, Scenario 5.

When in doubt, until there are more clear guidelines on what constitutes reporting to a tribunal, it seems most prudent to bring this matter to the State Bar’s attention where a lawyer is mandated to report because in that forum there is an established procedure.

Consequences for Failure to Report or to Wrongfully Report
A lawyer who fails to report conduct but was required to report by Rule 8.3 may be subject to disciplinary action by the State Bar. Likewise, false and malicious reports or complaints can result in criminal penalties or disciplinary action. Cal. Bus. & Prof. Code §6043.5. Additionally, a false complaint to a judicial officer or tribunal may result in discipline. Cal. Rules of Prof. Conduct, Rule 3.3(a); Cal. Bus. & Prof. Code §6068(d).

While many versions of the rule were debated, California chose to enact its own version of Rule 8.3, which limits reporting and requires a lawyer to carefully analyze and judge the circumstances necessitating a question of reporting. Time will tell whether the “snitch” rule will actually prevent certain conduct of lawyers or overwhelm the State Bar with complaints it cannot manage.

Nicole Nuzzo is a partner with Farzad & Ochoa, Family Law Attorneys, LLP, who is designated by the State Bar of California Board of Legal Specialization as a Certified Family Law Specialist. Nicole limits her practice to family law matters. Nicole is a member of the OCBA Professionalism & Ethics Committee and may be reached at Nicole.Nuzzo@farzadlaw.com.