To Tell Or Not To Tell: That Is The Question

Unlike many other instances where California leads the way, it will bring up the rear in proposing a new rule (all the other states have them pursuant to ABA Model Rule 8.3) that permits an attorney to file a complaint with the state bar against another attorney if certain criteria are met. The proposed rule is out for public comment for 45 days.

Unlovingly called the "snitch rule" by some, the rule would require attorneys to blow the whistle on other lawyers if the reporting lawyer knows of "credible evidence of misconduct." The proposed rule proffers two alternatives:

One requires reporting "of criminal acts, fraud, or misappropriation of funds or property in violation of rule 1.15 (safekeeps of property and funds of clients and others) and if the conduct raises a substantial question as to an attorney's honesty, trustworthiness, or fitness as an attorney in other respects." A two-prong test.

The second alternative "expands the type of conduct that must be reported to include acts of dishonesty, deceit, and misrepresentation. There is no requirement that the misconduct that must be reported must 'raise a substantial question,' but the duty to report criminal acts arises only if such acts reflect adversely on an attorney's honesty, trustworthiness, or fitness as an attorney in other respects."

Under what circumstances could "puffing" rise to the level of the puffing attorney's dishonest, deceit, or misrepresentations? What does "fitness as an attorney in other respects" mean? What other respects? Could those intrude into aspects of an attorney's personal life? Could that intrusion be considered a violation of privacy? Where would the line be drawn between something that might be considered a fitness issue and something that is private? How does that affect the attorney's "fitness in other respects"?

Given how much resistance California lawyers have shown in the past to any "snitch" requirement (similar attempts have never been implemented), yet aware of how much pressure the Legislature may well bring to bear on this issue, my sense is that the board of trustees may well go for the second, more expansive alternative. More fallout from the case of the lawyer who shall not be named, aka the Voldemort of California lawyers (and if you don't recognize the name Voldemort, then you don't know your Harry Potter). California lawyers will wait to see which choice the bar makes and then recommends to the California Supreme Court, which has the final say.

While reasonable minds may differ as to whether Model Rule 8.3 is a form of snitching, here's another form of snitching on which I think there shouldn't be disagreement. How about this? Several federal judges think that law schools should tell prospective employers when/if law students participate in protests that disrupt speakers on campus. Wait, what? Do law students ditch their rights to freedom of speech, including dissent, when they enter law school? Why can't they practice what they learn in Con Law class? Don't you think that law schools would want to think long and hard about potential consequences before blabbing to any prospective employer about anything that a student may do/not do outside of the classroom? What if the school gets it wrong? What if the school confuses the identities of two students with similar names? Similar facial features? Oopsie. Does a law school really want to take that chance with a student's future career?

This country has a long history of snitching. Are we headed back to the 1950s when people saw "a Red under every bed"? That was a time when snitching was elevated to an art form, as people threw others under the bus to avoid any association with anyone who was even the slightest bit "pink." It was Joseph McCarthy, the junior senator from Wisconsin, with his sidekick, attorney Roy Cohn, who terrorized people who didn't necessary adhere to what was thought during the Red Scare to be a good loyal American.

While domestic terrorism had always been present, McCarthy and his "ism" took it to new lows and swept the lives of many innocent people, people who had different points of view, into despair and then destruction. Read about Dalton Trumbo, read about the Blacklist, read about the House Un-American Activities Committee. Don't tell me that suggesting that law schools rat on their students to prospective employers isn't nibbling at the edges of what happened 70 years ago.

Just because a law student protest disrupts speakers it doesn't necessarily follow that the same student will stand at the counsel table and loudly protest a court's ruling. If so, that's what bailiffs are for, and contempt citations.

Back in 1954, when McCarthy was pursuing the Army for purported misdeeds, the Army's lawyer Joseph Welch asked McCarthy in televised hearings whether McCarthy had any decency left, given his evisceration of so many careers and lives. The same question could be asked today.

Just because a law school has the power to potentially destroy student careers because of law school conduct doesn't mean it should. What's the point in that except avenging perceived slights? Judicial tantrums aren't any prettier than law school student ones.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She's had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact -- it's not always civil. You can reach her by email at oldladylawyer@gmail.com.