9 Reporting Obligation

The “Snitch” Rule

ABA Model Rule 8.3 requires lawyers to report other lawyers’ misconduct when they know that the lawyer has committed an ethical violation that raises questions about that lawyer’s honesty, trustworthiness, or fitness to practice law. ABA Model Rule 8.3 does not require lawyers to breach confidentiality to comply with the rule. In other words, if a client insists that the information required to make the report remain confidential, the lawyer cannot report it. A lawyer can encourage their client to allow them to report so long as disclosure would not substantially prejudice the client.

Know is defined as “actual knowledge.” A person’s knowledge can be inferred from the circumstances. Ask any lawyer whether they are certain on whether a violation occurred, and they will likely pause to ask you, “does one ever really know?”

Comment 3 of the rule is helpful in such situations. “If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional misconduct. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this rule.” Calling out a colleague for misconduct can be tricky. Trusting your instincts in these situations is important. Some helpful factors in determining whether to report include the possibility of future harm and the extent to which the misconduct will otherwise go unnoticed.

Ultimately, the “Snitch Rule” is almost rarely enforced. However, the rule’s importance should not go unnoticed, given the self-regulating nature of the profession. The state of California decided not to adopt ABA Model Rule 8.3. Was this the right decision?

Are lawyers required to self-report? In some states, yes. For example, California outlines a series of triggering events (like an entry of judgment for fraud or misrepresentation or a misdemeanor conviction) in which lawyers must report their conduct to the state bar. Failure to report is misconduct.