No Duty to Rat in California
LACBA Update, August 2005
By Evan A. Jenness, member, LACBA Professional Responsibility and Ethics Committee. She is a criminal defense attorney whose offices are located in Santa Monica. The opinions expressed are her own.
What are your obligations when co-defense counsel makes misrepresentations to the court in your presence, your associate files a baseless complaint, or you learn that another attorney is pilfering client funds?
California is among the minority of states that do not require lawyers to report other attorneys' ethical violations to disciplinary authorities. Most states have adopted a version of the mandatory reporting requirement of Rule 8.3 of the ABA Model Rules of Professional Conduct (2005), which states that a "lawyer having knowledge 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." Lawyers have been sanctioned under such rules for keeping silent, even when they did not assist in or benefit from the wrongdoing. See In re Michael G. Riehlmann, 891 So. 2d 1239 (La. 2005) (publically reprimanding attorney who failed to promptly notify bar of former prosecutor's suppression of exculpatory evidence); Matter of Himmel, 533 N.E. 2d 790 (Ill. Sup. 1988) (suspending attorney for agreeing not to pursue disciplinary proceedings against client's former lawyer who converted client funds).
A California State Bar subcommittee considered proposing Rule 8.3 to the California Supreme Court almost two decades ago. It voted not to, because it would be hard to enforce and would engender antagonism between opposing parties, the sanction for failing to report could exceed that for the underlying violation, and a client's best interests might weigh against reporting. See 1 State Bar of California, Proposed Amendments to the Rules of Professional Conduct, "Proposed Rules and Legislative History," at 10-11 (July 1987). Mandatory reporting is not the best way to protect the public and clients, especially when there are more productive alternatives, such as encouraging the involved lawyer to remedy the situation.
Even though you are not required to make a report to the State Bar, other rules may require you to take action to avoid being held responsible for another attorney's wrongdoing. Lawyers may not assist in, solicit, or induce any violation of the Rules of Professional Conduct or the State Bar Act. Business & Professions Code Sections 6000 et seq.; Rule 1-120 of the Rules of Professional Conduct (2005).1 Nor may they take advantage of another lawyer's wrongdoing. S.D. Ethics Op. No. 1992-2 (no obligation to report opposing counsel's false claims against third party, but in "no event . . . may [attorney] knowingly take advantage of misrepresentations of opposing counsel to exculpate" client or "recover affirmatively" against third party). Joint responsibility for associates' misconduct is well established. See Rule 3-110, Discussion, Rules of Professional Conduct (Duty of supervision may include obligation to rectify subordinates' misconduct.); Gadda v. State Bar, 50 Cal. 3d 344, 353 (1990) (Attorney "cannot relinquish responsibility for . . . case simply by punting the file downfield to whoever catches it. . . . [Attorney] violated his duty of supervision for not taking responsibility for [associate]'s actions and by assigning him to conduct a hearing he was unqualified to handle without supervision."); Matter of Hindin, 3 Cal. State Bar Ct. Rptr. 657 (Rev. Dept. 1997) (disciplining partner for failure to supervise associates); Matter of Whitehead, 1 Cal. State Bar Ct. Rptr. 354 (Rev. Dept. 1991) (Failure to supervise associate is violation even where lawyer was misled and acted in good faith.).
You may report another attorney's wrongdoing even though you are not required to do so.2 However, common sense supports first considering whether the matter can be resolved more effectively by counseling the attorney to fix the problem. Some authorities suggest considering the broader implications of attorney wrongdoing in deciding whether to make a report. See S.F. Ethics Op. No. 1977-1 ("Moral and ethical considerations aside from the statutory law would seem to dictate such an obligation may be proper."); L.A. Ethics Op. No. 1986-440 (Lawyers "can and should consider the seriousness of the offense and its potential impact upon the public and profession," even though "it would be inappropriate to find such a duty in the absence of any express requirement."). Victims' interests also may be significant. See Riehlmann, 891 So. 2d 1239 (defendant on death row for half a decade after attorney learned of prosecutor's concealment of evidence exonerating him, and execution was imminent when matter finally came to light). You must obtain a waiver before disclosing privileged communications in any report,3 except where necessary "to prevent a criminal act" that you "reasonably believe[ ] is likely to result in death of, or substantial bodily harm to, an individual." Business & Professions Code Section 6068(e) (2005).
Unlike many other states, California provides tort immunity to reporters. See Civil Code Section 47(b) (2005) (Publications in "any . . . official proceeding authorized by law" are privileged.). Even defamatory reports to the State Bar are privileged. See Rosenthal v. Vogt, 229 Cal. App. 3d 69, 73 (1991) (Absolute privilege applies to complaints, communications and proceedings, and bars all torts except malicious prosecution.); Chen v. Fleming, 147 Cal. App. 3d 36 (1983); cf. Lebbos v. State Bar, 165 Cal. App. 3d 656, 669 (1985) (affirming dismissal of civil rights and malicious prosecution claims for damages caused by statements in disciplinary proceeding).
In sum, neither the California Rules of Professional Conduct nor the State Bar Act requires you to report another lawyer's ethical violations to the State Bar. Whether to make a report is entrusted to your discretion.
1 See also Penal Code §31 (Persons who "aid and abet . . . [or] have advised or encouraged" crime are punishable as principals.); §127 (subornation of perjury to "willfully procure[ ] another to commit perjury"); §132 (felony to knowingly offer falsified documents in proceedings).
2 But see Rules of Prof'l Conduct R. 5-100 ("Member shall not threaten to present . . . disciplinary charges to obtain an advantage in a civil dispute.").
3 Even in jurisdictions where whistleblowing is mandated, such reports may not involve the disclosure of confidential client information without the client's consent. See Model Rules of Prof'l Conduct R. 8.3(c); In re Disciplinary Proceeding against Schafer, 149 Wash. 2d 148, 66 P.3d 1036 (2003) (Rule 8.3 does not permit disclosure over client's objection of confidential client information regarding significant misconduct of lawyer who was about to become a judge.).