California ‘Snitch’ Rule to Report Lawyers’ Misconduct Advances

California would be the last state to require attorneys to report other lawyers for misconduct under a proposed rule adopted Thursday covering more than 250,000 lawyers in the state.

The bar Board of Trustees considered two alternatives to mandate reporting, and ended up after hours of debate sending both to the California Supreme Court for approval. The staff-recommended proposal requiring reporting of a criminal act that reflects adversely on that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects or conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property.

The second, narrower proposal requires reporting of criminal acts, fraud, or misappropriation of funds or property if the conduct raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

The 8-3 Board of Trustee vote in essence leaves it up to the state high court to choose a path. The vote comes three days after the state senate unanimously approved legislation (SB 42) to mandate reporting, putting more pressure on the bar to adopt a rule mandating reporting. The legislation tracks ABA Model Rule 8.3, which requires reporting conduct that raises a substantial question as to that attorney’s honesty, trustworthiness, or fitness as a lawyer in other respects.

The California Legislature regulates lawyers under the Business & Professions Act while the California Supreme Court oversees admission and discipline.

The proposal, derided as the “snitch rule,” comes after a very public thrashing of the California Bar and the profession, after famed plaintiffs’ attorney Thomas Girardi was accused of stealing millions of dollars from clients over a four-decade career.

“There’s not a race necessarily” to adopt a rule before the legislation passes, Board Chairman Ruben Duran said. “I think we’ve got some good concurrent procedures happening now.”

The trustees’ vote also comes ahead of a May 23 joint legislative oversight hearing of the state bar, where the agency’s failings with regard to Girardi and other attorneys will be featured.

“I don’t think it’s viable any longer for California to be the only state without some version of this rule,” Executive Director Leah Wilson said. “I don’t think it’s viable politically, and I don’t think it’s the right thing to do.”

The trustees’ vote also comes ahead of a May 23 joint legislative oversight hearing of the state bar, where the agency’s failings will be featured.

Concerns, Opposition

The State Bar received 390 public comments on the proposals, 328 of which were submitted by attorneys and attorney organizations. Some 199 of the commenters, 190 of which are attorneys, prefer that no version of the rule be adopted, a staff memo said.

Duran, a Best Best & Krieger LLP partner, said it “makes sense that a lot of them are attorneys, sure, but it also makes sense that we have to keep our public protection in mind first and foremost.”

Opponents suggested that it will particularly be weaponized against attorneys of color, women, and solo and small firm practitioners, and open the floodgates, overwhelm the system, and won’t protect the public.

California lawyers file on average 3-4% of all complaints. States that track range 3-9%, with complaints higher in Illinois, Erika Doherty, office of professional competence program manager, told the board.

As a general matter, complaints from attorneys “tend to be more thorough, and there’s more provision of supporting documents so that it’s easier for us to review them and make a determination as to whether there’s something there that should be the discipline or not,” Chief Trial Counsel George Cardona told the board.

Girardi, who was disbarred last June, was indicted in Chicago and Los Angeles on federal allegations of stealing from clients. A court-ordered competency evaluation is scheduled to be filed with the US District Court for the Central District of California on May 26, with the report copied to the US District Court for the Northern District of Illinois.