Until now, California was the only state in the United States which did not adopt the “snitch” rule contained in Rule 8.3 of the American Bar Association’s Model Rules of Professional Conduct.
On June 22, 2023, that changed: The California Supreme Court adopted a modified version of the ABA’s Rule 8.3. Effective August 1, 2023, the new rule states:
Rule 8.3 Reporting Professional Misconduct
(a) A lawyer shall, without undue delay, inform the State Bar, or a tribunal* with jurisdiction to investigate or act upon such misconduct, when the lawyer knows* of credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial* question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
(b) Except as required by paragraph (a), a lawyer may, but is not required to, report to the State Bar a violation of these Rules or the State Bar Act.
(c) For purposes of this rule, “criminal act” as used in paragraph (a) excludes conduct that would be a criminal act in another state, United States territory, or foreign jurisdiction, but would not be a criminal act in California.
(d) This rule does not require or authorize disclosure of information gained by a lawyer while participating in a substance use or mental health program, or require disclosure of information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.8.2; mediation confidentiality; the lawyer-client privilege; other applicable privileges; or by other rules or laws, including information that is confidential under Business and Professions Code section 6234.
The “Comment” to the new rule may be found at:
This new rule poses a dilemma for attorney mediators in California that up to now has been avoided: What does the attorney mediator do when during a mediation, she “…knows* of credible evidence… [ that one of the lawyers in her mediation] has committed a criminal act or has engaged in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation… property that raises a substantial* question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects?”
Under the Model Standards of Conduct for Mediators, mediations are confidential:
“A. “A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.” (See, Standard V.)(Emphasis added.)
So, when the mediator realizes that one of the attorneys in the mediation is making an intentional or reckless misrepresentation or engaging in dishonesty, fraud or deceit, etc., does she wear her “mediator” hat and invoke mediator confidentiality and stay silent or does she wear her “attorney” hat and comply with Rule 8.3? Does the caveat “unless required by law” allow the mediator to disclose to the state bar without violating this model standard?
In her book, Mediation Ethics, Editor Ellen Waldman(Jossey-Bass 2011) notes that “… as a matter of practice,…most attorney mediators place their duties of confidentiality above their professional self-policing obligations.” (Id. at 257.)
But, in Mediation Ethics: A Practitioner’s Guide, editor Omer Shapira (American Bar Association 2021) notes that the District of Columbia court “… upheld the suspension of an attorney in a disciplinary action following a lawyer’s mediator report of the attorney’s conflict of interest, even though the order of reference to mediation prohibited disclosures to the court.” See: In re Waller 573 A.2d 780 (D. C. 1990) (Id. at 280.)
Another issue is the reverse situation: suppose it is the attorney mediator that is engaging in misrepresentation. Under A. 4 of Standard VI- Quality of Process in the Model Standards of Conduct for Mediators, a mediator”… shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.”
Suppose the attorney mediator violates this standard in order to get the matter settled, and one of the attorneys realizes this later on. Does the “snitch” rule come into play? Does the attorney report the miscreant attorney mediator to the state bar despite mediation confidentiality?
The implementation of this new rule effective August 1, 2023, definitely poses a quandary for attorney mediators as well as for attorneys with whom they mediate. And the answer lies with each of individually. There is “no one size fits all” answer here.
… Just something to think about.
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