LACBA Update Back Issues - July 2015
Code of Judicial Ethics Canon 3D(2)—What Attorneys Need to Know
By Rashida Adams, a Senior Appellate Court Attorney for the Second District Court of Appeal, and member, LACBA Professional Responsibility and Ethics Committee. The opinions expressed are her own.
While lawyers must abide by the California Rules of Professional Conduct, judges in California must follow the Code of Judicial Ethics (the Code)—the collection of rules that govern the conduct of judges on and off the bench. (Cal. Const., Article VI, §18(m).) The Code consists of six canons, each of which covers a particular area of ethical responsibility, such as upholding the integrity and independence of the judiciary (Canon 1), or avoiding impropriety and the appearance of impropriety (Canon 2). Why should practitioners care about these rules? While most of the Code’s provisions only indirectly affect lawyers, Canon 3D addresses a judge’s disciplinary responsibilities, including the discipline of attorneys. Further, a new version of Canon 3D took effect in 2013.
Canon 3D(2). Under Canon 3D(2): “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or that a lawyer has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.”1 (Emphasis added.)
The Code defines knowledge as “actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” (Code of Jud. Ethics, Terminology.) Thus, judges may not turn a blind eye to attorney misconduct or a violation of the Rules of Professional Conduct. Corrective action in some form must be taken.
The California Supreme Court amended Canon 3D in 2012.2 Prior to the 2012 amendment, Canon 3D(2) required a judge to take appropriate corrective action upon knowledge of an attorney’s violation of the Rules of Professional Conduct; the amendment broadened the provision to include “misconduct.” Also, the prior version of the canon did not specifically state that a conclusion of attorney misconduct in a judicial decision requires further corrective action. Although the prior version of Canon 3D(2) did not define corrective action as including a report to an appropriate authority, the idea was noted in the Supreme Court Advisory Committee’s Commentary to the canon. The 2012 amendment moved the concept into the rule itself and added Canon 3D(4): “A judge shall cooperate with judicial and lawyer disciplinary agencies.”
Related authorities. The Code, however, is not the only authority requiring judges to report attorney misconduct. Under Business and Professions Code Section 6086.7 (Section 6086.7), a court must notify the State Bar (1) of a final order of contempt imposed against an attorney that may involve grounds warranting discipline under the State Bar Act; (2) whenever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney; (3) the imposition of any judicial sanctions against an attorney, except sanctions for failure to make discovery or monetary sanctions under $1,000; or (4) the imposition of any civil penalty upon an attorney pursuant to Family Code Section 8620.3 (Bus. & Prof. Code, §6086.7(a)(1)-(4).)
California Rules of Court adopted effective January 2014 provide concrete procedures for reporting under Section 6086.7. Under Rule 10.609, when a report is required, the judge issuing the order that triggers notification is responsible for notifying the State Bar personally or by directing court staff. Similarly, if an appellate ruling triggers notification, Rule 10.1017 requires either the senior justice issuing the order or the justice authoring the opinion to notify the State Bar or direct the Clerk to do so.
These rules of court and the 2012 amendment to Canon 3D(2) were at least partially foreshadowed in a 2008 report by the California Commission on the Fair Administration of Justice. The Commission studied the problem of false convictions and wrongful executions. It was also tasked with making recommendations to ensure the fair and accurate application and administration of criminal justice in California. (See Sen. Res. No. 44 (2003-2004 Reg. Sess.), adopted Aug. 27, 2004.) Based on an analysis of appellate decisions and testimony from State Bar trial counsel, the Commission concluded judges were significantly underreporting attorney misconduct in criminal cases. (See Cal. Commission on the Fair Administration of Justice, Final Report (2008) 70-71.) One suggested cause of the underreporting: it was unclear to judges who was responsible for alerting the State Bar when a judgment was reversed due to attorney misconduct. (Id. at 71.)
The Commission accordingly recommended the Code be amended to explicitly require that courts take appropriate corrective action after making a finding that an attorney has violated the Rules of Professional Conduct. The Commission also recommended that the Code require judges to report certain types of “egregious” attorney misconduct in criminal proceedings. (See Id. at 17-18.) Although the 2012 amendment to Canon 3D(2) did not incorporate this recommendation, the canon was amended to require judicial reporting of “misconduct” in addition to violations of the Rules of Professional Conduct.4
Canon 3D(2) and Section 6086.7. Despite significant overlap, there are a few notable differences between Canon 3D(2) and Section 6086.7. First, Canon 3D(2) is broader in scope. Canon 3D(2) does not limit a judge’s responsibility to reporting misconduct that results in a modification or reversal of a judgment in a proceeding, or misconduct resulting in sanctions or contempt. Instead, whenever a judge has personal knowledge or concludes in a judicial decision that a lawyer has engaged in misconduct or violated the Rules of Professional Conduct, Canon 3D(2) mandates corrective action.
Second, complying with Canon 3D(2) does not necessarily require a report to the State Bar, unless a report is required by other provisions of law. The amended Advisory Committee commentary to the canon explains “appropriate corrective action” may be a direct communication with the lawyer who has committed the violation, or may include “other direct action, such as a confidential referral to a…lawyer assistance program, or a report of the violation to the presiding judge, appropriate authority, or other agency or body.”
Canon 3D(2) and practitioners. While the 2012 amendment only modestly changed Canon 3D(2), it reinforced for judges (and other judicial employees) the scope of their ethical responsibilities when faced with a lawyer’s misconduct or violation of the Rules of Professional Conduct. Further, to the extent a judge’s reporting requirements were ambiguous under the previous version of the canon, the Code is now clear that reporting duties are triggered when, in a judicial decision, the court concludes an ethical violation has occurred.
When it comes to the Code of Judicial Ethics, practitioners should understand that the separate ethical responsibilities of judges and attorneys are connected in Canon 3D(2). Judges’ ethical duties to “preserve the integrity of the bench and to ensure the confidence of the public”5 extend to taking action to correct a lawyer’s misconduct or violation of the Rules of Professional Conduct.
1 Federal judges are guided by the Code of Conduct for United States Judges, which does not contain a corollary to Canon 3D(2). However, Rule 2.15 of the American Bar Association Model Code of Judicial Conduct requires judicial action regarding lawyer misconduct, including, under specified circumstances, when a judge has knowledge or information indicating a lawyer has violated the Rules of Professional Conduct.
2 Cal. Commission on Judicial Performance, Annual Report (2012), at 4.
3 In addition, Business and Professions Code Section 6086.8(a) requires a court to issue a written report to the State Bar whenever there is a finding that a State Bar member is “liable for any damages resulting in a judgment against the attorney in any civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.”
Under Business and Professions Code Section 6068(o), attorneys must “self report” under a number of circumstances, including several situations that would also trigger a court notification to the State Bar under Sections 6086.7 and 6086.8. (See Bus. & Prof. Code, §6068(o)(2), (3), (7).)
4 The Code does not define “misconduct.” At least one court has identified one form of “misconduct” under Canon 3D(2): an attorney’s disregard of a court order excluding evidence. The court’s “appropriate corrective action” was strong disapproval of the misconduct in a published opinion. (Pope v. Babick (2014) 229 Cal. App. 4th 1238, 1251.)
5 Code of Judicial Ethics, Preamble.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at firstname.lastname@example.org.