It’s official.  The Supreme Court of California has voted to approve the newest California Rule of Professional Conduct (“CRPC”), rule 8.3, which addresses a lawyer’s duty to report the misconduct of another lawyer.

Effective August 1, 2023, Rule 8.3 requires:

A lawyer shall, without undue delay, inform the State Bar, or a tribunal* with jurisdiction to investigate or act upon such misconduct, when the lawyer knows* 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.

(CRPC, rule 8.3(a) [effective Aug. 1, 2023].)[1]

Triggering the obligation to report, the term “substantial* question” in Rule 8.3 refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.  (CRPC, rule 8.3, Comment [4].)                  The intention of Rule 8.3 is to limit the reporting obligation “to those offenses that a self-regulating profession must vigorously endeavor to prevent.”  (Ibid.)   Accordingly, the Comments acknowledge that a “measure of judgment is, therefore, required in complying with the provisions of this rule.”  (Ibid.)

Additionally, a lawyer is required to report another lawyer’s misconduct as soon as the lawyer reasonably believes the reporting will not cause material prejudice or damage to the interests of their client or a client of the lawyer’s firm.  (CRPC, rule 8.3, Comment [3].)

The duty to report under Rule 8.3 does not extend to:

• Other violations of the Rules of Professional Conduct or the State Bar Act by another lawyer (CRPC, rule 8.3(b));
• Conduct that is not a crime in California, but would be a criminal act in another state, U.S. territory, or foreign jurisdiction (CRPC, rule 8.3(c));
• Information received by the lawyer while participating in a substance use or mental health program (CRPC, rule 8.3(d), Comment [5]);
• Information that is protected by other rules or laws, including, but not limited to, the duty of confidentiality, mediation confidentiality, the attorney-client privilege, and other applicable privileges (CRPC, rule 8.3(d));
• Information received by a lawyer who is consulted or retained to represent a lawyer whose conduct is in question, or who is consulted in a professional capacity by another lawyer on whether they have a duty to report a third-party lawyer under the rule (CRPC, rule 8.3, Comment [2]); and
• Information received by a lawyer while participating as a member of a state or local bar association ethics hotline or similar service (CRPC, rule 8.3, Comment [2]).

The Supreme Court’s decision was based on one of two recommendations (Alternative Two) approved for submission to the court by the Board of Trustees of the State Bar of California.  The competing alternatives that were under consideration are discussed in further detail in a prior Blog post, which can be read in full here.

The Court modified the State Bar’s proposal by adding additional provisions and comments to the proposed rule, such as:

• Providing that the subject misconduct may be reported to either the State Bar or a “tribunal* with jurisdiction to investigate or act upon such misconduct[.]”[2] (CRPC, rule 8.3(a).)  However, “[a] determination whether to report to a tribunal,* instead of the State Bar, will depend on whether the misconduct arises during pending litigation and whether the particular tribunal* has the power to ‘investigate or act upon’ the alleged misconduct.”  (CRPC, rule 8.3, Comment [6].)  “Where the litigation is pending before a non-judicial tribunal,* such as a private arbitrator, reporting to the tribunal* may not be sufficient.”  ()
• Advising that evidence of lawyer misconduct adduced during proceedings before a tribunal* that is a proper reporting venue may be admissible evidence in subsequent disciplinary proceedings. (CRPC, rule 8.2, Comment [6].)
• Noting that a report under the rule to a tribunal* concerning another lawyer’s criminal act or fraud* may constitute a “reasonable* remedial measure” within the meaning of CRPC, rule 3.3(b).
• Commenting that while communications to the State Bar relating to lawyer misconduct are “privileged, and no lawsuit predicated thereon may be instituted against any person” (Bus. & Prof. Code, § 6094), lawyers may still be subject to criminal penalties for false and malicious reports or complaints filed with the State Bar or be subject to discipline or other penalties by offering false statements or false evidence to a tribunal. (CRPC, rule 8.3, Comment [10], citing CRPC, rule 3.3(a); Bus. & Prof. Code, §§ 6043.5, subd. (a), 6068, subd. (d).

Notably, imposition of an obligation to report the misconduct of other lawyers is also separately under consideration by the California legislature.  Senator Umberg introduced Senate Bill 42 in December 2022, which would add section 6090.8 to the California Business and Professions Code, establishing a statutory duty to report misconduct of other lawyers that is identical to the duty set forth in ABA Model Rule 8.3.[3]  SB 42 recently passed the Senate Floor with a unanimous and bi-partisan vote of 38-0 and is currently awaiting a hearing in the Assembly Judiciary Committee.[4]

[1] An asterisk (*) identifies a word or phrase defined in the terminology rule, CRPC, rule 1.0.1.

[2] “‘Tribunal’ means: (i) a court, an arbitrator, an administrative law judge, or an administrative body acting in an adjudicative capacity and authorized to make a decision that can be binding on the parties involved; or (ii) a special master or other person* to whom a court refers one or more issues and whose decision or recommendation can be binding on the parties if approved by the court.”  (CRPC 1.0.1(m).)

[3] ABA Model Rule 8.3(a) provides, “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.”

[4] Senator Umberg recently issued a statement in response to CRPC Rule 8.3.