Would a snitch rule solve California’s ethics problem?

does California need a snitch rule?

In the summer of 2022, the California Supreme Court disbarred attorney Tom Girardi and ordered him to pay his former clients nearly $2.3 million in restitution for money he was accused of stealing from them.

The case might have gone largely unnoticed by the public if Mr. Girardi hadn’t gained recent notoriety by virtue of his former wife’s role in the television “reality” series Real Housewives of Beverly Hills.

Instead, the decision set off fire alarms both inside and out of the legal profession.

How could he 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.

The reason for this is because California is one of few states that has not enacted a so-called “snitch rule” — an ethical rule requiring attorneys to report misconduct by other attorneys.

In this article, we’ll break down what a snitch rule actually is, take a look at why California doesn’t have one, and then raise the question of whether a snitch rule is the only thing necessary to clean up California’s ethics problem.

What is a snitch rule?

As noted above, a snitch rule is an ethics rule that requires lawyers to report misconduct perpetrated by other attorneys and judges. Most states that have a snitch rule in place have adopted the language of ABA Model Rule 8.3. It reads:

(a) A lawyer who knows 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.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

The rule itself is relatively simple. In essence, it’s the legal profession’s version of “see something, say something.”

But if the snitch rule is so straightforward, why doesn’t California have one in place?

Why doesn’t California have a snitch rule?

From the perspective of the public, the snitch rule is 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, the California State Bar has considered — and rejected — enacting a snitch rule several times, most recently in 2017. The reasons cited for this rejection seem nonsensical at best.

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

Respectfully, that’s 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 is that the rule could require the reporting attorney to reveal confidential information about a client.

Again, respectfully…that’s more hogwash.

Model Rule 8.3(c) specifically says, “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 report that misconduct without revealing client confidences. The letter to the State Bar goes 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 are so easy that one has to wonder whether there’s a bigger ethics problem at play.

Let’s explore that, shall we?

Would a snitch rule solve California’s ethics problem?

As it turns out, California’s lack of a snitch rule may not be its biggest ethics problem at all.

In early 2022, a California State Auditor performed an audit of the State Bar’s handling of complaints against attorneys (which apparently happen quite regularly 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 the 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?

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