California Rule of Professional Conduct 8.3 became effective August 1, 2023. I have pasted the Rule below. The Rule also contains 10 Comments which I have not provided below, and other resources exist or are being prepared to help lawyers understand and deal with the new Rule. You can find a discussion about Rule 8.3 on the State Bar website at https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics/Rule-83-Required-Reporting

I disagree with Rule 8.3 for at least three reasons: the wording and the Rule’s application are vague and ambiguous; generally I also do not believe that it is good policy to require (“shall”) lawyers to report or tell on other lawyers except in the most extreme or egregious situations of misconduct; and some lawyers will negligently or intentionally use the Rule to report on other lawyers in situations where reporting is not required or appropriate under Rule 8.3.

The above having been said, unfortunately I have to say that in trust, estate, probate, conservatorship, elder and elder abuse litigation I do sometimes come upon situations where I may have to evaluate whether Rule 8.3 requires me to report another lawyer for improper conduct. I currently have at least one of those cases that I will need to evaluate. As you read Rule 8.3 that I have pasted below, consider how potentially broad the wording is – for example: “conduct involving dishonesty” or “. . . that raises a substantial* question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

Here is the wording of Rule 8.3:

Rule 8.3 Reporting Professional Misconduct

(Rule Approved by the Supreme Court, Effective August 1, 2023)

(a) 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.

(b) Except as required by paragraph (a), a lawyer may, but is not required to, report to the State Bar a violation of these Rules or the State Bar Act.

(c) For purposes of this rule, “criminal act” as used in paragraph (a) excludes conduct that would be a criminal act in another state, United States territory, or foreign jurisdiction, but would not be a criminal act in California.

(d) This rule does not require or authorize disclosure of information gained by a lawyer while participating in a substance use or mental health program, or require disclosure of information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.8.2; mediation confidentiality; the lawyer-client privilege; other applicable privileges; or by other rules or laws, including information that is confidential under Business and Professions Code section 6234.

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David Tate, Esq. (and inactive CPA)

• Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
• Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
• Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
• Mediator and facilitating dispute resolution:
  • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
  • Business, breach of contract/commercial, owner, shareholder, investor, etc.
  • D&O, board, audit and governance committee, accountant and CPA related.
  • Other: workplace and employment, environmental, trade secret.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.