In the wake of concerns about the lack of oversight about the ethics of some of its member-lawyers, the State Bar of California submitted a change to its Rules of Professional Conduct last year, which the California Supreme Court approved with minor changes on June 21. The new rule puts California in line with the model rules of the American Bar Association adopted in 1983 and with variations of similar rules that have been adopted in all of the other 49 states.

Rule 8.3 of the California Rules of Professional Conduct centers on the reporting of professional misconduct. It states, “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 a lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit, or intentional or reckless misrepresentation of funds or property that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

The Bar’s version of Rule 8.3 was slightly modified by the California Supreme Court. A media release from the California Courts Newsroom explains that the Court’s decision was based on one of two of the State Bar’s recommendations. In addition to applying to lawyers, it added the courts to those who must inform the State Bar of professional misconduct, adding that a court’s misconduct finding may be used as evidence in State Bar disciplinary activities. It also requires lawyers to “take remedial measures” if they know someone who has or will engage in fraudulent conduct. In addition, it adds commentary that clarifies that false reports can subject lawyers to disciplinary or criminal penalties.

Lawyers who do not obey the new rule face suspensions of up to three years. The new rule, which was drafted by the State Bar’s Board of Trustees, contains an exemption for information that is learned by fellow attorneys during substance abuse or mental health treatment programs or if it is covered by attorney-client privilege.

Several media outlets attribute Rule 8.3 to the need for stepped-up lawyer oversight in light of recent ethical violations by attorney Tom Girardi, 84, who is currently facing federal wire fraud charges in Chicago and Los Angeles. Girardi also has a lengthy history of corruption that includes the misappropriation of millions of settlement dollars dating back to the 1980s. When Girardi was being investigated, employees at his law firm acknowledged they knew he was “pilfering” settlement funds. Over 205 attorney ethics complaints were filed against Girardi Keese, a law firm that ceased to exist in 2020.

In addition to addressing Girardi’s misconduct, the concern over attorney ethics is not new. In fact, the Bar has been concerned for nearly 10 years. The California Bar Journal reported that the Bar held public hearings, sought public response to its proposals, and received over 500 written comments throughout the decade. The length of time that the new rule has been under consideration attests to the controversy it has prompted. Reuters reports that the State Bar received over 200 complaints opposing the new rule. On the other side, most non-attorneys favored the change because they believed fellow attorneys would be in a better position to spot misconduct than members of the public.

Kevin Mohr, a professor at Western State College of Law, who was a consultant to the State Bar during the drafting process, told the California Bar Journal, “I see a lot of old friends who aren’t treating me like old friends,” while reporting that they just give him a sarcastic ‘thanks a lot’ when they see him. Other critics worry that the rule will “overwhelm the state bar’s disciplinary system with complaints.”

One retired judge interviewed for this article commented that reporting bad lawyers is certainly a step in the right direction, just as the public wants good police to report bad police. But he is also wary that the new rule could be misused. For example, he is afraid that the definition of misconduct will not always be clear, since misconduct can be “in the eye of the beholder. “One person’s misconduct is another person’s tactics,” he said. Also, there may be times when a lawyer tries to use the rule to gain a tactical advantage. For example, it could be used to tie things up or for settlement leverage.

Robert Duran, the State Bar’s Chair of its Board of Trustees, told The Los Angeles Times he was “grateful” to the Supreme Court for “quickly refining and approving” the new rule. “Protecting the public is our most important duty,” he said, and “the new requirement will further our mission…”

Reddit began its article about rule 8.3 with the comment, “The most surprising thing here is that California didn’t already have a snitch rule/system.” Some attorneys have argued that “such regulation is “unnecessary for members of California’s prestigious bar.” But then again, Girardi was one of those members.