Would a snitch rule solve California’s ethics problem?

Back in December 2022, we published an article about the California snitch rule, or lack thereof. A proposed rule would require attorneys to report unethical behaviors observed among their colleagues.

At the time, the absence of such a rule, which is firmly entrenched in the ABA Model Rules as well as the ethical regulations of most other states, was a noticeable absence when so many other states had enacted similar rules of conduct.

In fact, earlier that year, the California Supreme Court had disbarred attorney Tom Girardi and ordered him to pay his former clients nearly $2.3 million in restitution for the money he was accused of stealing from them.

That case became notorious by virtue of the fact Mr. Girardi’s wife had a prominent role in the television “reality” series Real Housewives of Beverly Hills.

The decision undoubtedly set off fire alarms both inside and outside of the legal profession.

How could Girardi have gotten away with this? Shouldn’t his colleagues have noticed — and reported — this grand misappropriation of funds?

The truth is, Mr. Girardi’s partners were under no ethical duty to report his misconduct – at the time.

Since then, California has adopted its own version of the snitch rule. Although it differs in important ways from the ABA Model Rule upon which it was based, it may help prevent other Girardi-level misdeeds by attorneys within the State.

In this updated article, we’ll briefly visit the ABA Model Rule for a refresher on exactly what a snitch rule is. Next, we’ll examine California’s new rule and its slight but significant diversions from the original. Finally, we’ll discuss whether a snitch rule is the only thing necessary to clean up California’s pervasive ethics problem.

Snitch rule origins

As noted above, a snitch rule is an ethics rule that requires lawyers to report misconduct perpetrated by other attorneys and judges. Up until this summer, California was one of the only states not to have a formal snitch rule in place. Indeed, nearly all other states had simply adopted the language of ABA Model Rule 8.3, which we’ll look at below.

For now, it’s important to understand that the rule itself is relatively simple. In essence, it’s the legal profession’s version of, “See something, say something.” Lawyers, who are charged with all sorts of ethical duties by virtue of the profession, are expected to police themselves. That seems like a rational plan to most rational people.

But if the snitch rule is so straightforward in purpose and intent, why didn’t California have one in place?

What took California so long?

From the perspective of the public, the snitch rule has always been a no-brainer. Wouldn’t such a rule protect the public from the sort of attorney shenanigans that earned them such a bad reputation in the first place?

How could that be a bad thing?

The truth is, that the California State Bar had considered — and rejected — enacting a snitch rule several times, most recently in 2017. The reasons cited for this rejection were nonsensical at best.

One justification for failing to enact a snitch rule was that it would be hard for lawyers to know whether the misconduct they witnessed was serious enough to warrant a report.

Respectfully, that one was complete hogwash.

If you see an attorney stealing client funds, you report it. If you catch a lawyer in your firm billing a client for eight hours of work on a day you know he was out golfing from dusk to dawn, you report it. If you witness an attorney misleading a client about the law or about the status of the client’s matter, you report it.

And then you leave it up to the State Bar investigation to sort out issues of seriousness.

Another justification for avoiding the snitch rule was that the rule might require the reporting attorney to reveal confidential information about a client.

Again, respectfully… that’s more hogwash.

Model Rule 8.3(c) specifically disavows that notion: “This Rule does not require disclosure of information otherwise protected by Rule 1.6 [Confidentiality of Information].”

It’s not hard to imagine how any lawyer who knew Tom Girardi was stealing client funds could have reported that misconduct without revealing client confidences. The letter to the State Bar would have gone something like this:

Dear State Bar: On January 14 of this year, I witnessed attorney T. Girardi removing funds from a client trust account and then converting those funds for his personal use. Should you decide to investigate this matter, I can reveal information about the client’s identity and funds under seal. Sincerely, Concerned Attorney

Indeed, the workarounds to the purported concerns about the snitch rule were so simplistic that one had to wonder whether there was a bigger ethics problem at play. We’ll get to that in a minute, but first let’s take a look at California’s newly-enacted snitch rule.

The snitch rule, California-style

The best way to understand California’s new snitch rule is to examine it side-by-side with the Model Rule. When you do that, it becomes clear that California made some very significant changes from the original text, the most salient of which are discussed below:

Time is of the essence

The California rule requires that reporting attorneys lodge their complaint “without undue delay.” This is a substantial difference from the Model Rule, which did not impose a timing requirement. Not allowing potential reporters to sit around and mull over the decision may be a good thing. It certainly won’t allow attorneys to sit around thinking of reasons to talk themselves out of making the complaint in the first place.

Credible evidence required

The Model Rule requires an attorney to make a complaint if they simply “know” of unethical conduct by another attorney. The California rule, by contrast, only requires that a complaint be lodged if the reporting attorney has “credible evidence” of violative behavior. This requirement may prevent unwarranted complaints, but it also seems like a convenient excuse not to make waves. How many attorneys, for example, had access to Tom Girardi’s bank statements (i.e., credible evidence)? Probably not many but they may have noticed that his extravagant lifestyle outpaced his caseload to a degree that warranted investigation.

Who you gonna call?

Interestingly, the new California rule allows attorneys to make a report to the State Bar or “a tribunal” — another departure from the Model Rule. This type of reporting won’t keep attorneys out of hot water with the Bar, however. In fact, Comment 6 to the rule recognizes that the tribunal receiving a complaint about an attorney may themselves be required to report the attorney’s conduct to the State Bar if circumstances warrant it.

Federal laws excluded

The new rule makes a significant carve-out for attorney conduct that would be illegal federally (or in other states) but is not illegal in California. The most obvious place this reporting exception would come into play is if one attorney witnessed another using marijuana, which is legal to possess and consume in California but remains illegal on the federal level. Even though possession might land someone in federal prison for many years, California has decriminalized the act and, therefore, it is not fodder for a snitch rule complaint.

Does the snitch rule solve California’s ethics problem?

California’s new snitch rule may be a significant step toward cleaning up the profession within the state but the lack of the snitch rule probably wasn’t California’s biggest ethics problem to begin with.

In early 2022, for example, a California State Auditor performed an audit of the State Bar’s handling of complaints against attorneys (which apparently happened quite regularly even without a snitch rule in place).

The auditor’s report to the Governor and Legislature was shocking.

The report provided stark details about the State Bar’s failure to act on repeated attorney complaints. In one case, for example, the Bar received 165 complaints about a single attorney over a period of seven years — and failed to discipline that attorney in any way, shape, or form.

Moreover, the auditor found that “the State Bar has not consistently identified or addressed the conflicts of interest that exist between its own staff members and the attorneys they investigate. In more than one-third of the cases we reviewed, the State Bar did not document its consideration of conflicts before it closed these cases.”

In other words, the fox is watching the henhouse.

Ultimately, the auditor concluded that the State Bar “failed to effectively deter or prevent some attorneys from repeatedly violating professional standards.”

In light of this, it seems California might need something that cuts a little deeper than its new snitch rule. The rule is certainly a good start, but without meaningful enforcement, it does nothing to protect California’s legal consumers.

What do you think?