Chelvam: State Rule of Professional Conduct 8.3 a Game Changer

Friday, November 3, 2023 | 0

Yes, you read the title correctly: I am indeed referring to a rule of professional conduct as a game changer. Until very recently, I would never have considered using that term to describe a rule of professional conduct.  

Michael Chelvam

I — like many of you, I suspect — do not think about legal ethics and rules of professional conduct on a daily basis. These things were taught to us in law school (perhaps in a one-credit-hour course) and then we crammed them into our heads in order to pass the bar exam and Multistate Professional Responsibility Examination.

After that time, though, these issues rarely surface with much frequency. Sure, you may sometimes inadvertently receive a letter that was intended for opposing counsel rather than you. Likewise, when changing jobs or working for a new employer, there may be a question of what precautions are needed to avoid conflicts of interest. By and large though, rules of ethics rarely change and garner very little attention.

California Rule of Professional Conduct 8.3 went into effect Aug. 1 and is something that many California lawyers may learn of only when they perform their next round of continuing legal education. Although Group 2 has a Feb. 1, 2024, deadline to report CLE compliance, for attorneys in Groups 1 and 3 that deadline is more than a year or two away; thus, some attorneys will be woefully ignorant of this important rule for a substantial period of time.

Rule 8.3 basically changes from permissive to mandatory a California-licensed attorney’s obligation to report criminal acts and certain misconduct by other attorneys. Prior to Aug. 1, a California attorney could choose to simply “turn a blind eye” to fairly egregious misconduct by a fellow attorney, like misappropriation of client funds. Now, that is no longer the case.

Perhaps most significant is that a lawyer who has committed no misconduct on his own part can face State Bar discipline for failure to report an offender if certain conditions are met. I think this is the most significant impact of this new rule, as most lawyers are highly motivated to avoid even the possibility of facing State Bar discipline and will be quick to report perceived misconduct.

I expect Rule 8.3 will affect litigators and transactional attorneys alike. For instance, a probate attorney may come across evidence of a prior attorney’s misconduct while preparing a real estate trust. Criminal defense attorneys may learn that a district attorney has prosecuted a crime without probable cause. Of course, civil litigators and family law attorneys are notorious for contentious litigation tactics, and Rule 8.3 will certainly affect them. 

I suspect that even the administrative realm of workers’ compensation will be affected. Many documents, like proofs of service and verifications, are signed under penalty of perjury. If a falsehood is contained in one of these documents, it can be construed as a reckless or intentional misrepresentation, thus mandating reporting.

I urge all California-licensed attorneys to read Rule 8.3 immediately if they have not done so already. It is fairly succinct. I urge you to read the 10 comments that relate to it as well. To be sure, there is a lot of “play in the joints,” and some of the terms that are used, such as “undue delay” and “substantial question,” will have to be clarified in the court system. Bear in mind, though, that Rule 8.3 is modeled on similar rules in other states, so there is likely some precedent for how these terms will be applied.

There is one interesting caveat that applies to workers’ compensation: Rule 8.3(a) allows the reporting to be made to either the State Bar or “a tribunal with jurisdiction to investigate or act upon such misconduct.”  

Does that include the Workers’ Compensation Appeals Board? To my knowledge, the WCAB does not employ full-time investigators like the State Bar. However, a workers’ compensation judge can certainly impose sanctions on an attorney if due process is provided. Again, I think this is a question that will have to be answered in the years to come.

In the meantime, the State Bar is offering a free, one-hour CLE session on the topic of Rule 8.3. Check the State Bar website for exact dates and times. I found it very informative and highly recommend it.

At a minimum, though, read Rule 8.3 immediately, because as I said, it is a game changer.

Michael Chelvam has practiced workers' compensation law on behalf of applicants in the San Francisco Bay Area since 2015.