Starting Aug. 1, California lawyers will be required to report other attorneys’ misconduct.
The new rule of professional conduct was approved by the state Supreme Court June 21.
The reports can be sent to either the State Bar of California, or to the county court.
The reporting attorney would be required to report if they know of credible evidence that the reported attorney engaged in dishonesty, fraud, deceit, misrepresentation or misappropriation of funds or property that “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.” The reporting attorney would also require the reporting of acts that would be criminal in other states or nations, but not acts that are criminal in California.
Lawyers that falsely report can be disciplined.
A footnote to the rule says that lawyers should report to the county court if the alleged misconduct arises during pending litigation, and if the court has the power to investigate the misconduct. If the court finds evidence of misconduct, they can refer it to the State Bar.
California was the only state that had not yet adopted a mandatory misconduct reporting rule, according to the State Bar. Most states follow American Bar Association Model Rule 8.3.
The state has considered and rejected reporting rules twice since 2010, the Bar said.
The adopted rule is the most expansive of two options the State Bar was considering. The other option would not have required the reporting of dishonesty, deceit and misrepresentation. The other option would have also had a higher burden of reporting. The report would only have been required if the conduct raised a substantial question as to an attorney’s honesty. Instead, the conduct must be reported if it reflects adversely on an attorney’s honesty.
A similar rule was working its way along the legislature. Senate Bill 42, authored by Sen. Tom Umberg (D-Santa Ana), had passed the Senate May 15, but had its latest hearing canceled at Umberg’s request.
Both rules were being pushed forward after Los Angeles attorney Tom Girardi was found to have stolen from his clients.
“The Tom Girardi scandal highlights that the existing system for attorney discipline in California is woefully inadequate,” a Senate report regarding Senate Bill 42 says.
Published attorney feedback on an earlier version of the rule shows disapproval.
Fifty-nine percent of responding attorneys disagreed with the rule, only 12% agreed with it, and 30% would agree if it was modified, according to a March 16 State Bar report.
Rancho Cucamonga family law attorney James Kenny wrote against the rule.
“I have had several situations wherein I had questions about another lawyer but I have never had sufficient information to conclude that a criminal act had taken place,” Kenny wrote.
“We have significant duties to the clients that we represent. This proposed rule would create conflicts between our duties to the bar and our clients,” he concluded.
Another lawyer says she regretfully sees the point of it.
“I first wanted to oppose this but then realized how many criminals we have now. I believe this goes a bit far for over regulation. I just can’t imagine an attorney observing criminal conduct by another attorney not reporting it without the need for this rule. It’s too bad it’s gotten this bad,” wrote Needles family law attorney Barbara Beard.
Read public comment here.
Read the rule here.
