Proposed New Rule of Professional Conduct 8.3 (Reporting Professional Misconduct)
The State Bar seeks public comment on Proposed New Rule of Professional Conduct 8.3 addressing a lawyer's duty to report the misconduct of another lawyer.
Deadline: February 17, 2023, 11:59 p.m.
Direct comments to
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
Background
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with addressing matters involving legal ethics to help California lawyers understand their ethical duties. The committee’s work includes studying and recommending changes to the Rules of Professional Conduct. (See State Bar Board Book, Section 4.12 & Appen. B.)
At the November 17, 2022, Board of Trustees meeting, Board Chair Ruben Duran assigned COPRAC to:
"[P]repare a proposal for a new Rule of Professional Conduct addressing a lawyer’s duty to report the misconduct of another lawyer. While all other United States jurisdictions have adopted a rule on this topic, California has not. Adoption of a rule will enhance public protection which is the primary mission of the State Bar. In carrying out this assignment, COPRAC should consider American Bar Association Model Rule 8.3 (Misconduct) and the adoption of that rule, and variations thereof, by other jurisdictions. COPRAC should also review the past consideration of Model Rule 8.3 by the State Bar’s Commission for the Revision of the Rules of Professional Conduct."
In furtherance of this directive, COPRAC seeks public comment on Proposed New Rule of Professional Conduct 8.3 (New Rule 8.3).
Discussion/proposal
New Rule 8.3 would:
Require a lawyer to file a report with the State Bar if the lawyer knows through their own observations that another lawyer has committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects as prohibited by rule 8.4(b);
Clarify that a report to the State Bar is not required or authorized if the lawyer gained the information while participating in a substance use or mental health program; and
Clarify that a report to the State Bar is not required if the information is protected by other rules or laws, including, but not limited to, the duty of confidentiality and the attorney-client privilege.
State Bar staff also requests public comment on whether the State Bar of California should consider recommending that the Supreme Court adopt a New Rule 8.3 that is based on American Bar Association (ABA) Model Rule 8.3. ABA Model Rule 8.3 varies from COPRAC’s proposed New Rule 8.3 in four main ways:
New Rule 8.3 requires a lawyer to report certain criminal acts by another lawyer that violated the Rules of Professional Conduct and if the lawyer has personal knowledge of the other lawyer’s conduct. ABA Model Rule 8.3 requires a lawyer to report any violation of the Rules of Professional Conduct by another lawyer that raises a substantial question as to the other lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.
New Rule 8.3 does not require a lawyer to report conduct by a judge. ABA Model Rule 8.3 requires a lawyer to report conduct by a judge where the lawyer knows that a judge has committed a violation of the rules of judicial conduct in certain instances.
New Rule 8.3 does not require or authorize a lawyer to report another lawyer if the lawyer gained the information while participating in any substance use or mental health program. ABA Model Rule 8.3 has a similar, but narrower, exception: it does not require a lawyer to report another lawyer if the information was gained while participating in an approved lawyer assistance program.
New Rule 8.3 does not require a report to the State Bar if the information is protected by the duty of confidentiality or the attorney-client privilege. In addition, a report is not required if the information is protected by other rules and laws, such as statutory mediation confidentiality. ABA Model Rule 8.3 does not refer to information protected by other rules or laws. It only provides that a report is not required if the information is protected by the lawyer’s duty of confidentiality.
At its January 13, 2023, meeting, COPRAC approved proposed New Rule 8.3 for a 30-day public comment period.
Committee on Professional Responsibility and Conduct
Deadline
February 17, 2023, 11:59 p.m.
Direct comments to
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
