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If a California attorney sees another attorney from this state do something wrong, should there be a duty to report the “bad” attorney to the State Bar of California?

If state senator Tom Umberg has his way, the answer would be yes. Umberg introduced legislation on December 5 that would require “a licensee of the State Bar who knows that another licensee has engaged in professional misconduct that raises a substantial question as to that licensee’s honesty, trustworthiness, or fitness as an attorney in other respects, to inform the State Bar”.

Presently, at least here in California, lawyers have no requirement to report the misconduct of other lawyers to the State Bar of California, which oversees the practice of law in the Golden State. But they may if they so desire. Many other states follow a rule that basically mimics the prosed legislation of Senator Umberg. (On the other hand, if a California lawyer threatens to report another attorney, that itself is misconduct under California Rules of Professional Conduct, rule 3.10, which prohibits the threatening of the presentment of “criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute”. In fact, rule 3.10 prohibits these threats against anyone, lawyer, or non­lawyer.)

But back to Senator Umberg’s proposal. Many think that this is a response to recent revelations of the failure of the State Bar in the past to punish well known attorney Tom Girardi, who had been the subject of 200 bar complaints. Girardi, who recently was finally disbarred, allegedly stole millions of dollars from clients.

One lawyer was quoted in the Los Angeles Daily Journal that the proposed legislation could breed distrust and might even result in the discipline rule being used as an offensive weapon. Senator Umberg told the newspaper that he is not interested in people who are just “obnoxious in depositions” being reported; he said it is the “most egregious acts which are known or should be known to other lawyers” that should be encompassed by the legislation.

Sometimes it is hard to know if another attorney is doing something wrong. If the “other attorney” skims money from a trust account, how do other attorneys find out? But what if, on the other hand, you are in court and can smell alcohol on the opposing lawyer and the person is disheveled, disorganized, and making no sense? That might be a duty of a breach of a lawyer’s obligation to practice law “competently”, although the lawyer who under this new legislation may have to report such conduct would benefit if the errant attorney forgot to make objections or argue the case in a coherent fashion.

Here is another example. California lawyers themselves have a duty to report any felony charges against them and all criminal convictions. If you’re a lawyer and you find out that your friend, also a lawyer, just plead guilty to a DUI, do you have to report that friend? (This is somewhat of a trick question because the guilty lawyer has a duty to self-report the guilty plea, which is the same thing as a conviction. So, if the lawyer who plead guilty does report the conviction, can the first lawyer be punished for not notifying the State Bar even though the agency would already know about the DUI because of the mea culpa of the other lawyer?)

One more example before I lose my readers due to boredom. If a California lawyer is sanctioned by a judge for $1,000.00 or more, in most cases the lawyer must report that fact to the State Bar. Indeed, the sanctioning judge must also report the sanction. But what about the lawyer on the other side; does that lawyer have to report the offending counsel? What about an attorney sitting in an audience who witnesses the judge sanctioning the attorney? What we do know is that the offending attorney has a duty to self-report. And if he or she fails to do so, that could be an independent basis for discipline under Business and Professions Code section 6068, subd. (o)(10).

The post To Tell or Not to Tell appeared first on Andy Cook Law.


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