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The Snitch Rule - Meredith Jury

So You Think You Understand the Snitch Rule?

Tim Kowal     February 13, 2024

Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.”

There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.) and Certified Bankruptcy Specialist Stella Havkin what they mean:

  • If you arguably misstate fact or law, is that a reportable event? Answer: Assume it is.
  • What will this do to collegiality in the profession? Answer: Nothing good.
  • If a partner committed indiscretions with the trust account, does it matter that you didn’t know about it? Answer: Don’t count on it.
  • Every other state already has a snitch rule. How much guidance do they provide on its application? Answer: Very little.
  • Will the snitch rule drive in reports to prevent Girardi-type scandals? Answer: The Bar had received some 200 reports about Girardi, so it’s unclear what more reports would have done.
  • But the snitch rule is a good idea, right? Answer: Check back in after a few years.

And something you probably didn’t know: The reason California doesn’t follow the ABA Model Rules is because they are rules of ethics, where California’s Rules are rules of discipline. We discuss the difference in theory (interesting!) and the difference in application (not much, actually).

Judge Meredith Jury’s (Ret.) biography.

Bankruptcy Specialist Stella Havkin’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Transcript:

Announcer  0:03  
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:17 
I am Jeff Lewis. And

Tim Kowal  0:19 
I'm Tim Kowal. While both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis  0:34 
And if you find it unhelpful, recommend it to your opposing counsel. And before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast casetext is a legal technology company that's developed AI back tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023 casetext launch co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy. Our listeners enjoy special discount on casetext's basic research at casetextcom/calp That's casetext.com/calp.

Tim Kowal  1:14  
all right, Jeff, today we're going to learn something about the rule of new rule of professional conduct 8.3 And if you if if the number 8.3 Doesn't ring a bell, that is what's colloquially known as the snitch rule and everyone has heard of the snitch rule, and nobody knows what it means. So we have judge Meredith jury and Stella have come here to talk to us about about what it is what it means when do we have to report and what it's going to do the to the profession and whether it's going to help bring some mischief among members of the bar to heal. Judge Meredith jury served over 20 years as bankruptcy judge presiding over 1000s of bankruptcy proceedings. She also served as a member of the United States bankruptcy appellate panel for the Ninth Circuit. Prior to taking the bench she had over 21 years of experience as a litigator, primarily practicing in bankruptcy, and she now serves her community with extensive pro bono work. Stella Haskin graduated magna cum laude from New York University in Toronto, Canada while working for the Canadian Armed Forces on statistical analyses that resulted in an article published in a NATO publication on attrition of women in the military, and its African is a certified bankruptcy specialist. And her practices her practice focuses on commercial litigation and bankruptcy. She's represented debtors, creditors and trustees and over 1000, Chapter Seven, chapter 13, and chapter 11 bankruptcy cases as well as involuntary bankruptcy cases in California, Texas, and Florida. Stella, Judge Jury, welcome to the podcast. Thank you for joining us.

Hon. Meredith Jury (Ret.)  2:48 
Yes, thank

Stella Havkin  2:49  
you. Good afternoon.

Tim Kowal  2:50 
So let's get right into it the snitch rule. Let me first ask you, I've heard that the State Bar is not terribly excited about the moniker snitch rule. Do you have any comments on on the term snitch rule? Is it? Is it too cynical?

Hon. Meredith Jury (Ret.)  3:06 
I think that lawyers will consider it that

Tim Kowal  3:09 
just just just run with it.

Hon. Meredith Jury (Ret.)  3:11 
Absolutely. Because the rule requires that we snitch on another word.

Tim Kowal  3:19  
That is kind of what it is,

Hon. Meredith Jury (Ret.)  3:21 
you know, we could say it in nice and turns. But that really is what it is. So it's too hard. Too bad. The State Bar doesn't like that, because they are primarily responsible for us having Yeah.

Stella Havkin  3:34  
And then you do know why came about this is as a result of the Gerardo case, where there was over 200 complaints over many, many years. And nobody did anything about it, about money having disappeared and all of that. And so now the state bar is under a lot of pressure to act. And so they decided to pass on responsibility to all the lawyers and now the lawyers have to fill out as you know, these trust account forms extensive trust account forms and have maintained records that that most people maintain anyway. But if you're going to steal, you're not going to maintain records anyway. So it doesn't really matter. And now they've got this role where we're supposed to be monitoring other people and how much monitoring we should we're gonna do. We're gonna talk about in a bit.

Hon. Meredith Jury (Ret.)  4:26 
And the ironic thing about the State Bar is people had in fact reported dropped, right.

Tim Kowal  4:33  
Yeah, still it just mentioned 200 reports in

Hon. Meredith Jury (Ret.)  4:36 
place, it seems unlikely they would have gotten more reports than they already had.

Tim Kowal  4:42 
That's right. So is the is the impetus behind this neutral that well, we got 200 complaints, but that really wasn't enough. We needed more snitches to make our ears perk up over the Tom Gerardi problem, you know,

Hon. Meredith Jury (Ret.)  4:52 
but I would remark that I don't know the source of those complaints and what don't think that's the very few cases that talk about 8.3. And I'll talk in a minute why there are some cases already about it. There's a great deal of if you're an associate in a law firm, and you want to report your partner. Oh, yeah, are you? Yeah, but you can't, we can't, you're gonna get fired or because you're just intimidated about, he's your partner. I don't know whether any associates in his law firm reformed him, so I can understand why they might not have. But the issue is many other people did. Well, interestingly

Stella Havkin  5:36 
enough, I happen to be representing in the bankruptcy case, to senior associates out of Bakke case. So I happen to know that they were there for years and had no idea because his either son in law, or some other person were in charge of the funds. And so they had no idea about what was going on in terms of the finances of the firm, other than he would make lots of promises and didn't deliver on them, which is not unusual. But they did not know what was going on in terms of the money until the situation started. Where there was all those complaints. But the complaints were I personally have no knowledge of it. But I heard that he had somebody in the State Bar, sweeping them under the carpet.

Hon. Meredith Jury (Ret.)  6:25  
Oh, yeah, there was a lot of newspaper articles that reflect that. And I, we could talk about what happened when this jewelry and why the shape bar was real covered here. But let's talk about how this roll. Well, first of all, I think we should people that don't know, I'm going to read the first paragraph of the rule. So they understand what we're talking about. Because without that context, they won't.

Tim Kowal  6:49 
Yeah, yeah. Okay, let's let's

Hon. Meredith Jury (Ret.)  6:52 
roll 8.3 Yeah, hello, shall without undue delay, and I get a shot when I think raises or we don't know what that means, in front of the state bar, or a tribunal with jurisdiction to investigate or act upon such misconduct. And that part of it is important. It was very important. When we talked to bankruptcy lawyers, we were suggesting they use the bankruptcy court and third party review. Anyway, they report to the borrower or the tribunal 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 another term, we don't know what it means, as to that words honesty, trustworthiness, or fitness as a lawyer in other respects. And that's the only part of the role that we need to read, because it's the only part that really creates categories.

Tim Kowal  8:00 
Yeah. So we've got a lot of terms of potential terms of legal art. In that rule, there is an undue delay, you have to report without undue delay. So we have to know what that means. When the lawyer knows, you know, is it knows or should have known, Stella just mentioned a couple of attorneys working in that firm, but had no knowledge to what extent is just lack of actual knowledge enough, for

Hon. Meredith Jury (Ret.)  8:24 
example, and I'm not, I don't know anything about stones, cause I'm thinking the older man associate might know about a misappropriation misconduct. And remember what happened there and what we're supposed to report if we know it, if a lawyer is misusing their trusty cow that has money in it, they should go to a client, that associate might have gotten a call from the client to say, I thought he settled the case, where's my money? And, you know, that's the only way I can think and associate but that happens, actually, I think the clients will be the way if that type of misconduct occurs, courts, they are unless you're in the firm, they're your clients. I mean, the opposing counsel whether you know, but yeah, because I'm thinking of it. They're selling a personal injury case where their client is the one that pays the money in and suddenly they're they might even get contacted by the third party claim as opposed to get paid, you know, the medical variety. Right. That might lead to that need to make an inquiry. We have deadlines.

Tim Kowal  9:32  
Yeah, yeah. So you've painted some some facts that could lead us you know, circumstantial evidence that would lead to a should have known standard for an associate. What about for partners? Do partners have constructive knowledge? Or can they just say, Well, I just I'm not in charge of the of the books we we have our bookkeeper do all that the managing partner handles all that I'm a partner but I stay clear of anything to do with the client trust account is that going to pass muster under this rule?

Hon. Meredith Jury (Ret.)  9:59 
I think not. I mean, from the point of view of it really hits you really what we're really talking about here is if a lawyer doesn't report what happens to them, and I was just thinking about fraud, fraud, Fargo partners fraud, have thought of yourself, you know, Barton Morphicon has sent us a bankruptcy case to squeak or bankruptcy case. partnership law says one partner commits fraud, all partners commit fraud. And if you're in a partnership, whereas the guy is defrauding his clients by misappropriating funds, their other partner is legally liable for the fraud. But I don't know that that means he has knowledge to report. That's why this is a complicated, but if you if you parse the words, it's hard to know what they really mean. Yeah, yeah.

Jeff Lewis  10:58  
Let me ask a question, though, that that partner, if he knew, if you actually knew his partner was stealing, or committing fraud, he would absolutely have an obligation? No. But let me ask this question, because I'm thinking about this 80s shampoo commercial where someone comes on and says, They told two friends and they told two friends, there's like eight and 16 pictures on the screen. If if a lawyer observes somebody committing a violation and doesn't report it, and some other lawyer observes that lawyer not reporting that violation? Is there any end to the obligation of an attorney to snitch on somebody who has failed to snitch? How many levels out? Can you go? What is the limit?

Stella Havkin  11:38  
Well, don't gestures that case. You want to talk about it? The the what's the handle case, fam? Yeah, where the

Hon. Meredith Jury (Ret.)  11:48 
two cases there is a background to why we have cases, I think it's important that people know that California was the last of the 50 shapes to enact this rule.

Tim Kowal  12:00  
So all 49 Other states have a snitch rule already.

Hon. Meredith Jury (Ret.)  12:03  
Yeah, it is part of the ABA. CO love conduct. I try to think they had model rules. And then they had model code. And then they had my rules. Were under the model rules. Now. My code came first. It was an A that was in the code became the rules and the 90s. This rule was in the code. I mean, going back into the 80s, or if not earlier, and most states adopted the ABA code of conduct or rules or whatever they're calling them. Now. They're models somewhere along the way. I'm not saying all at once, but all of them other than California have had this rule for at least 20 years.

Tim Kowal  12:52 
Okay, so we've got a we've got a wide body of application of these rules in other jurisdictions, or is that going to prove helpful to applying it in California?

Hon. Meredith Jury (Ret.)  13:01
 
Well, I was the one of the panel that did the legal research to see where there were cases at Christian nail, some, and there are very few reported cases, considering how long this rule has been around. And there are only two or three we are they actually found misconduct, because of a bar investigation against somebody that did not report another attorneys misconduct. So many of the cases, were like Stella's clients, they were so attorneys that were terminated for wanting to report their partners or actually reporting their partner for misconduct and they brought wrongful termination cases. And so that the whole twisting burdens of proof and everything else was at issue there, because no lawyer was being disciplined. But there are a couple of disciplinary cases that made it to the Supreme Court some couple shapes that I could talk about it and admitted, we suspect the reason that there are so few reported cases is most of them are handled at the administrative law level within the disciplinary proceedings of the various courts and never get to a court this kind of report.

Tim Kowal  14:24  
Well, based on your review of these, of the of the decisions on the snitch rule and other in other states. Do you have an impression about if California had had a snitch rule? If it had adopted the model rule back in the 90s? Would the Gerardi scandal have occurred with the snitch rule have prevented the Gerardi scandal? Well,

Hon. Meredith Jury (Ret.)  14:46  
based on the context is the State Bar knowing that man was committing misconduct I don't see I would have made any difference. Sell

Stella Havkin  14:55 
it because you know, I don't see how it made you if it's 200 people reporting is Not enough? I mean, it was a 201. You know, I mean, but but may have been the clients reporting the problem and not the lawyers. And so is it possible that if the actual lawyers with some knowledge would have reported it, and because he also had like business partners throughout the country, where he wasn't paying these lawyers now that that's a breach of contract. Now, if they had some idea that they you also wasn't paying the, the, the clients, and they didn't report, maybe, but I have the feeling that it's mainly the clients who were who were doing this who were doing the reporting, because I want to tell you, I was involved in another case, where, unbeknownst to me, you know, I was only involved for two weeks in this case. So long time, two weeks, I was an involuntary that was filed against a law firm, and the lawyer couldn't or there was a conflict. And he told me some song and dance bottom line is that the lawyer had a similar practice to Gerardi and they they swindled money out of clients, they didn't pay all of that he's now in prison. It's a case in front of a bankruptcy judge. I got the heck out of there very quickly. And not knowing I thought it was he told me this partners took it and whatever. But he was reported to the bar by one of the lawyers, and the bar did get involved. And this was before Gerardi. But it was also because there was an involuntary bankruptcy that was filed against this guy and his company, the secured creditor got involved. So all these lawyers got involved, and they shut that down. I think three or four or $5 million did get converted, but the practice got shut down. And it was an orderly fashion a lot better than the Gerardi case. So I do think that's possible that if the lawyers were more proactive, the ones that we're not getting paid from Gerardi, that might have been a different scenario. The guy I'm talking about was not as big as Gerard Gerardi was really did the supposedly the standard, you know, personal injury, and you know, those airplane crash cases. So maybe they were scared of him, as opposed to the guy that I was involved with for two weeks, he was not a big shot. And he went off to Costa Rica and a stupid guy when came back to sell a house the proceeds of his and he got arrested in Miami. So cautionary tale, do not steal, you get caught.

Hon. Meredith Jury (Ret.)  17:22  
I think what this rule does, that the people in variety that might have been reporting were people that were financially affected by his misconduct. And this rule requires a lawyer, the opposing counsel is not financially affected in almost any instance, to report it is most likely they're not going to be reporting misappropriation, because they're gonna know, right? You know, the trust account is exactly that. They can't, you know, you can't garnish it, you can't see it, you can't discover about it. But what they're gonna know, and this is all might know, is dishonesty or fraud. And one of the troubling things here is this rule doesn't carve out how you handle an incomplete discovery disclosure. When the attorney signs there are no documents, and then there are documents, you know, is that a mis representation is that a reportable offence is that lawyer doesn't report it, or they say what happened to you your report is rule 8.4 comes into play. If you're the attorney that doesn't report 8.4 is the rule and we haven't I haven't heard somewhere that says, you are in this contract for violating these rules. Yeah.

Jeff Lewis  19:00 
Failure to snitch rule.

Hon. Meredith Jury (Ret.)  19:02 
Yeah. This This will mean you have committed misconduct.

Tim Kowal  19:06 

Yeah. Isn't a reckless is

Hon. Meredith Jury (Ret.)  19:08 
a good point for me to talk about the couple cases because I want to tell you how egregious they were that ever gotten to Supreme Court of another state. One of them is a case called civil that came out of the Supreme Court of Illinois. Yeah, it's been around since 1989. I believe we're 98 and it really took up I want to say the Illinois bar. What happened in Hamill was the attorney they got disciplined was attorney number two for their client. Their client had been represented by a lawyer who was selling the personal injury case. And he was he got the check. He signed it post check. Go sign your double check with his trusty cow. She was most beginners two thirds and his 1/3 While he took it all So she was trying to get the money from a lawyer that she should have gotten from the sole client was, she goes to client attorney to who is handle the attorney or discipline. And obviously him all knows that the guy took the money. But instead of reporting him, she did for her client, what she should have done. She tried to do aggressive things like, you know, sue him or threaten to sue them, and finally entered into some kind of mediated settlement with him and got money for quiet, great, great outcome for a client. But the bar found out about it because they found out about the guy from some other source. And they said, Well, Miss Hill, you're supposed to report him,

Stella Havkin  20:46 
right. And there was I just read reread the case. And interesting enough, the client reported, the guy

Hon. Meredith Jury (Ret.)  20:54  
reported it right. Then I started investigation and then found out that hippo had reported the outcome of this case was a one year suspension. Wow. And it shook up the Illinois bar. Because I've seen articles about it. There was an article that was written about the school in general. They there are, there's more reporting in Illinois than any other state in the country, because of this Supreme Court decision. They got everybody's attention. And I think that's kind of harsh. Now, the other case came out a Louisiana Supreme Court. And it was it is a case we're talking about just gives a fashion. So your name, the is the real the case from two days apart? Yeah, Mr. Real Man, again, that's visible in the attorney was a former prosecutor. And he gets a call out of the blue from a guy he used to be a co prosecutor with, and he says, Hey, let's have a drink. So they go to the bar and the guy, the other co prosecutor says Jim, Mr. Rubin, I have terminal cancer. And we I had a case, where there a murder case, guys on death row, where there was a culprit, Hillary won evidence that he could not have committed the crime, which I did not disclose. So former prosecutor who's out in private practice, doesn't do anything. And then the guy who's about to get executed, somebody finds out about things, sculpture, evidence from some other stores. And they and at that point, the lawyer learns about it. And he reports it, he discloses it to the DEA, I think, I'm not sure if this is the bar, but I think he disclosed it to the DEA that they should escape these to get off death row. It was type A versus Type V one, which they were very capable of doing, you know, 20 years ago. And this, so they went after real been and this said, Well, you reported it, but there was maybe some undue delay in your

Stella Havkin  23:11 
five years, apparently, yeah, five years.

Hon. Meredith Jury (Ret.)  23:13 
But you know, that they did, they gave him a public approval, no probation, no suspension, and certainly known as murder. So those are the only two reported cases that that were they actually which were, I mean, I said about those wrongful termination cases when the issue came up. But the only two Supreme Court cases where they actually disagree.

Jeff Lewis  23:40 
Let me ask you a question. Tim and I are appellate lawyers. It's kind of a small bar. Like we come across the same lawyers over and over again. I imagine it's similar to bankruptcy, smaller pool of lawyers. Sometimes you need favors. Yeah,

Hon. Meredith Jury (Ret.)  23:51  
very much. So I mean, that's a really good. I mean, we're fighting bigger bar. But yeah, we see each other every day.

Jeff Lewis  23:58 
 
And by the way, this isn't a side, I'm very bitter when I went and sat for my certified appellate exam, become a specialist. I think the bankruptcy lawyers were open book, and the appellate lawyers were closed books. The bankruptcy lawyers got to be able to look through the code, but that's a topic but

Stella Havkin  24:16 

I took it in I didn't help the thing. You know, what, are you going to flip through it?

Jeff Lewis  24:20 
Exactly. It's very distracting when you're taking the test hearing all that page flipping. But let me ask you a question. You rely on your opponent for an extension for a favor, here and there. This imposes a duty to snitch on your opponent if you catch him in a flat out dishonest act that bears on that lawyers fitness as a lawyer or as trustworthiness. You got to report them. How does the lawyer reconcile that with the need represent their client and get along with lawyers to push cases through?

Stella Havkin  24:50  
Let me give you an example. Actually, you should be asking us because I did set talk about this presentation we did. I was involved in a case in chapter 11. In case where one of the creditors was a former lawyer of the client, and he is definitely has mental issues. He's had a nervous breakdown, the partnerships went away. And his big claim was against my client. There was an egregious amount of harassing tax, this big amount of text, he would show up at this doctor's office to demand money. He was just insane. He filed improper appeals, he did all kinds of churning work as I would call churning just to create fees. And then he filed a ridiculous claim for Rico violations that because he didn't get paid, and his girlfriend would let him move in. I mean, I'm talking crazy stuff. And he kept harassing. So I, what I saw was egregious conduct. And I thought this guy should not be practicing law and being a menace to clients. So I wrote a letter to the State Bar and attached a bevy of information. And they didn't do anything with it. That was one problem. The second thing is, the guy found out about it, somebody reported him. And he gave me so much grief during that case that I and I, in hindsight, I don't know if I would have reported him again, because it cost was so much aggravation, not only to my client that I had to deal with, because he filed some an adversary proceeding for willful malicious conduct and all kinds of nonsense. And on top of it, he was the only one when I my fees were being considered by the judge, he was the only one sitting around complaining about it causes all kinds of grief. So it's the right thing to do. But what kind of grief it causes to decline of the lawyer actually reporting Mind you this guy, thankfully, does not practice in the bankruptcy world. And he's more he's more of a a guy who's a creditor. So it's a little different than your question. But on the other end, I do have another guy that I did also report for, but it's public record that he when I was on the, so it wasn't as big of a deal. And I don't speak to him anyway. Nobody does. You only put it in writing with this guy. You don't trust him, but

Hon. Meredith Jury (Ret.)  27:22 

a couple of things. Number one, she wrote a lot of their job for the State Bar came out with a forum prior reporter snitch. Yeah, they make it easy actually go to the website, they take care, everyone. They don't say what they're gonna do with it. But they make it easy, but talking about doing something that will hurt your own client? Well, here's what they put in the comments as a rule, this is about cutting through the duty report without undue delay requires the lawyer to report as soon as are reasonably the reporting will not cause material prejudice or damage to the interests of a client of the lawyer. The other guy there protecting the client of the badass team player that you're gonna report because there's nothing in the comments about do i Who's where's my duty? My first duty is to my own crime.

Tim Kowal  28:16 
 
So the so the undue delay when you're reporting on another attorney, the undue delay is delay from the standpoint of the bad acting attorneys client. Yeah, not the reporting attorneys.

Hon. Meredith Jury (Ret.)  28:28 
 
That's what I say. Yeah. And to me, I don't know where that would be. I know, I, I do volunteer things. I have no plays my own. So, you know, I did for a long time, but not since I retired. But I don't know where that actually practicing lawyer where they have the duty, you know, care to their own lawyer. And there are a lot of situations like still describe, where if you do something that the other lawyer does, like, they're going to escalate the litigation? Yeah. Yeah.

Jeff Lewis  29:05  
Let me ask you this as appellate lawyers, often Tim and I serve as CO Counsel of sorts, either off record, or de facto co counsel to trial lawyers. We come in a year after the fact. I actually know

Hon. Meredith Jury (Ret.)  29:17  
that I write appellate briefs in my name. I met they're not my clients. I'm just co counsel. So

Jeff Lewis  29:24 
we're reviewing trial transcripts. And sometimes, you know, we see the best and the worst of lawyers, we see things that happen in trial that make your jaw drop. If we see something from years ago in a trial or getting ready for an appeal, and it bears on the trustworthiness or fitness of the trial lawyer or CO Counsel of something that happened years ago, but you got to appeal pending and you got to work with this lawyer to get the appeal across the finish line. What is the scope of appellate lawyers duty to snitch in that circumstance when you got to work with the guy or snitching about

Hon. Meredith Jury (Ret.)  29:56 
Well, number one that give the client their is in fact the client that the rule on the end delay is catching? Okay. But number two is what you're seeing you got to the rule itself credible evidence?

Jeff Lewis  30:12
 
Yeah, assuming it's dead bang credible evidence this is there's no question that's

Hon. Meredith Jury (Ret.)  30:16 
in the transcript. It might well be. Yeah, like a party admission, if nothing else, that the guy is maybe doing something wrong. But yeah, you know what? I think first of all, you have to make sure it doesn't hurt your co client, which we notice how the appeal is over and then report him.

Tim Kowal  30:36 
I noticed that reading this rule, there is nothing in here about there's not a damages element. There is not there's not an aspect of the rule that says that the the the reckless or intentional misrepresentation of the of the offending attorney, that raises a substantial question of honesty, trustworthiness or fitness, it doesn't say that that act has to likely result in harm to that attorney, that bad acting attorneys client, so there's not eight so even if the bad acting attorneys client is not does not stand to be harmed by the by the offending conduct, it still has to be reported. Am I understanding that right? You

Hon. Meredith Jury (Ret.)  31:14 
are in the policy behind in this rule, forget about your warranty? Let's talk about a broader scope. Let's talk about what the ABA says there's a reason we're doing this because we actually had in our materials, the ABA model rule is we are a self policing profession. You know, we have to report ourselves, if we get sanctioned over 1000 rounds, we we are expected to have an ethical code and practice under it. So there the idea is to get out in front of bad behavior, whether it I don't think harm is the policy, although ultimately plants will be harmed. I think it's the integrity of the profession, at the self policing, self reporting aspect of it, that they're really focusing on when they have a move like this.

Tim Kowal  32:11 
Do you know based on your read of the of the ABA model rule and the other states that follow? It is, is California rule 8.3? Is California snitch rule broader than the ABA rule? Or is it in line with it

Hon. Meredith Jury (Ret.)  32:25 

is a little bit broader. I'm finding the rule. Here it is. It has three parts. The lawyer who knows that another lawyer is committed a violation of the rules of professional conduct that raises a substantial question is you're going to honor lawyers honesty pressed forward in your business as a lawyer shall inform the appropriate professional authority. It that's about as ambiguous and broad is origins, although it doesn't have the criminal in there, which I think is the building specific thing. That may go on and this has not been adopted daughter knows a judge has committed a violation, they have to report the judge. And we have other remedies for judges in our state, which is why I think that rule was there. And the rule is not required disclosure of information otherwise protected by rule 1.6 or information, which I think is a turning point for you. But it is it has the same ambiguous states that Louisiana case I read, they adopted it without that substantial question. I don't know what they put instead. But their adoption as a rule in every state there there. The Illinois adopted slightly differently. But I think they all have this ambiguity as to what it really has to be. A lot

Tim Kowal  33:53  
of attorneys are watching the news about the use of AI in the legal profession using chat GPT. And everyone saw the news about the attorney who was sanctioned for for using chat GPT cited cases in their brief that actually did not exist. It turned out chat GPT was hallucinating. And so I think most attorneys know now don't rely on chat GPT don't copy and paste chat GPT results into your brief. But if an attorney were to do that, would that run afoul? Would that be a reportable event? does that constitute intentional or reckless conduct that raises the question of honesty, trustworthiness or fitness that that falls under 8.3?

Hon. Meredith Jury (Ret.)  34:31 
I think I think I think it does in the sense of reckless. I mean, I might not I mean after that case in New York that everybody knows about, I think is reckless for any attorney to submit a brief that was written by chapter without doing more. Yeah. So what,

Jeff Lewis  34:51 
let me push back a little bit on that, Tim, it's kind of a moot point in that situation, because if you're an opponent of somebody who submits a chat GBT brief the rules allow you to courts somebody's State Bar either through the web form or to the tribunal and nine times out of 10. If you catch your opponent's have any chat GBT brief you're going to drop a footnote or in all caps, a big thing saying, Yeah, this is incompetence. And this footnote, or this argument hereby satisfies my duty to snitch obligation under the State Bar rules. Yeah, yeah.

Hon. Meredith Jury (Ret.)  35:23  
We didn't talk about the tribunal part of it.

Tim Kowal  35:26  
Enough to run up the flagpole in the Korean

Hon. Meredith Jury (Ret.)  35:29 
nation to the bar. But again, we were talking to Banco cylinders, is you're trying to do should we the bankruptcy court, in almost all instances, because there are remedies for misconduct in our federal rules. We have 90 level rule. And you probably know a bit around Janet Yellen in the bankruptcy. We have inherent sanctions. We have a our central district, we have a disciplinary procedure against lawyers, you're new to the country for bankruptcy courts, where we have a three judge panel that you know, here was a miss caught, it really thinks that would be reportable misconduct in many situations. And we can do it ourselves and figure out a remedy that is appropriate for the circumstance. Yet some would

Jeff Lewis  36:18  
argue the courts or the tribunals are in a better position than the underfunded and understaffed state bar to enforce these rules. But let's

Hon. Meredith Jury (Ret.)  36:28  
just put our rules, we can essentially suspend the lawyer from practicing in the bankruptcy court for up to five years. Wow. Can't suspend them from practicing anywhere else. And I think if it is really bad conduct, and they shouldn't be a lawyer at all, then I think you better go to the State Bar.

Jeff Lewis  36:46 
Well, but let's let's talk about that. Because the rules are the comments the rules, I can't remember which say basically, a lawyer has got a choice. They can either do the anonymous form on the state bar, or snitch to the tribunal. And it doesn't give much guidance on which should be done. It seems to be up to the lawyer. Did I read that? Right?

Stella Havkin  37:02 
We think so. Yeah. Private arbitrator, that's the one thing you can't bribe traders insufficient. But if you are the judge, I think that's a tradition. It

Hon. Meredith Jury (Ret.)  37:15  
has to be a party that can make a real associate judicial ruling. So a private arbitration mediation kind of think,

Tim Kowal  37:25 
Well, Jeff, you gave me an idea. Now Now I'm thinking about doing a macro in text expander. For anytime I see a reckless misstatement or recklessly bad argument in my opponents brief, I'm going to drop a footnote with a citation to 8.3. Nope, no.

Hon. Meredith Jury (Ret.)  37:42  
You want to anger all your opposing counsel? Yeah,

Jeff Lewis  37:46 
you've got the choice of dropping that footnote. And it's feel satisfying to say, Aha, but your other choice is to submit it to the website of a state bar. And I wonder which better serves your client as opposed to placating your anger remain anonymous.

Hon. Meredith Jury (Ret.)  37:59 
While your footnote? Footnote certainly isn't. One other comment in here that to the rule, your account brings up this is important, this is number coming, in addition to reporting as required in paragraph eight, which was the borrower the credit bureau report may also be made to another appropriate agency, then it goes on a lawyer must not threaten to present criminal administrative or disciplinary charges, to obtain an advantage in a civil dispute and violation of rule 3.10. And rule 3.10 is the rule. Do I care for you, but basically says the same thing, you can't use it for leverage. You can't say, if you don't sell this case tomorrow, or if you don't comply with, you know, turn it over your turn and tie it to something you can do. I'm going to report you to the bar for that misconduct that you did last week. You can't do that. However, they have carved out a bunch of what you can do and what you can't it doesn't mean you can't say unless you do whatever, we're gonna pile on Watson, that normal domain federal kind of thing or take any other act that you would be allowed to do. But I think if the foot no implied you're gonna refer isn't the bar. I don't know. I'm often I'm off in a field I haven't walked in before.

Tim Kowal  39:40  
We talked earlier about the fact that in the Gerardi case, there were some 200 complaints that had already been filed to the state bar and this was before the snitch rule. I wondered if, if you have any insight into what the State Bar is looking for I've trawled through the The State Bar disciplinary Law website before and and I've noticed that it seems like the vast majority of the attorneys who do get disciplined are only disciplined after dozens and dozens of very serious violations. And I wonder if if you if you ever if you know about any attorneys who have gotten disciplined for for a single violation or a small, you know, just a couple of violations or as a state bar really looking for serial offenders? Well,

Stella Havkin  40:30  
I can tell you that I was on the State Bar Legal Specialization for five years, I was the commissioner. And previously, I was on there for about six years. And I don't know whether they've gotten a little more stricter or a little more aggressive. But at that point in time, I found them to be very wishy washy, I found to be there was a lawyer that was going to be recertified that I personally know has had eight malpractice actions against him. I also know him to be completely dishonest. And I also knew that he had been involved in illegal conduct. In fact, a lady who used to work with me had worked for him. And we had obtained independently evidence of some serious stuff. And this much stuff went out to them as well, nothing happened to him. In fact, they also would not insisted on recertifying him because they said, whether he has eight malpractice cases against him, and he's done any of this stuff, we don't want to be sued. And I thought, well, what kind of organization are you if you are your your goal is to protect the public, from bad actors? At least that's what you say you're supposed to do. And they didn't do it at the time. So in my opinion, it has what I have seen in cases is that theft, and but it has to be multiple thefts. Because they do give you an opportunity that if let's say, right, of course, if you stole $10 million, I think you're done. But if you're if you've stolen $10,000, and they give you an opportunity to give it back. It's also it depends what the violations are, I would think theft. They don't care as much about malpractice, you know that you didn't show up, you have serially didn't show up to hearings and your client got harmed or any of that stuff. That's malpractice, and they think insurance will cover it. So I think it's more in this death scenario, and it has to be multiple. That's, that's what I think. But I don't know, it's gonna

Hon. Meredith Jury (Ret.)  42:34 
I used to read when I was a judge, well, they think the State Bar used to send out something monthly or quarterly. You know, I got that I got it. It had all the disciplinary reports in it. And I read I guess, I was curious, what were lawyers getting disciplined for, and I don't disagree with salah, knowing that it will be a one instance case, you know, it'll be a client that was really damaged, that made the complaint learning Well, remember, this reporting each other is brand new, we have no idea what they're going to do with that. Well, either the one you report or yourself for not reporting. I mean, the greatest fear of the lawyer is what happened you this rule says You shall report or you're going to be useful. And it that's why I had only those two cases. And, you know, I think if there's a handle case, and it gets to them, they might, for example, purpose, go after the lawyer and do what they did in him, because you aren't going to know if you are the second lawyer. That's the most likely way you're going to know about most of the things you're supposed to report. When thinking about when I was in, I always had a red flag up when somebody came in, and wanted me to be their lawyer after somebody else. Because those cases can be problematic. But that client is going to tell you about the misconduct of their prior lawyer. Now, you can't just reported them because you need this credible evidence standard. But you know, maybe you make some inquiries, and you find out about and if you don't report of wishes, what happened with him, you know, knew that he taken the client's money out of his trust account and didn't do what he was supposed to do with them. Yeah, yeah. And I think they use it yet again, Supreme Court. Use it as an example. And by the way, if we had a subsidy that comes out of our bar, tape bar court, I think it automatically goes to our Supreme Court as well. I might have the order. You're the appellant. I mean, I'm trying to think doesn't walk its ways in the spirit court and the court of appeals. I think it goes directly to the Supreme Court. I think that's sort of the springboard of every state is the Final the body that decides who the weakest branch. Okay,

Tim Kowal  45:04 
my last question. And it's it's a yes or no question. But of course you may comment on it. Do you think that the snitch rule is a good idea? Or is it going to cause more problems and fixes? I'll let Stella to weigh in first.

Stella Havkin  45:18  
I think it's very confusing. I don't know what it means. We've been trying to figure it out for a long time since we started working on this program. And I still don't know what it means. I think it's it's such a broad terms. I think we all know that if somebody's stealing, and you have knowledge of stealing, we all know you can report and I think, but it's where the discovery stuff is failure to provide documents? And do you really know that they got documents? Or is it the client not allowing you to produce a document? That's where it gets really wishy washy? And if you report and or don't report, that's where I think it becomes confusing. And I think it is going to cause more problems, because I think everybody already knows you should have reported somebody who was stealing. So I don't think we needed the snitch rule to say go ahead and report. Yeah, so my opinion, I think it's going to cause more problems than it has, but it's part of every state. So I guess it has to be here.

Tim Kowal  46:22  
So it's a rule, we're just limited to you have to report any misappropriation of funds or property a little bit easier to answer. Yeah, that's a good thing. But all the other stuff, it makes it a little bit fuzzier fuzzy?

Hon. Meredith Jury (Ret.)  46:35 
My answer would be I've always worried about not like that to California, is the only safety doesn't have the ABA model rules. And you know, and you don't want because they are an ethical code, and we have a disciplinary set of leaves, our Code of Professional Conduct is in is purpose is so we can be disciplined. And they put the HBase. My rules are so that lawyers will practice ethically, and there is a difference. However, this particular rules or policy behind it, I agree with we are a self regulating profession. And if we see conduct by counsel that will harm their clients, or harm the integrity of this system, I have an ideal that that would be reported. What I don't like about it, is the fact that the person who doesn't report is now in misconduct is well, I mean, if they could have went in there in a way that didn't automatically create the violation of 8.4, I would have preferred it.

Tim Kowal  47:55 
 
Can you can you tease out the difference a little bit? I had not heard that distinction before between ethical rules and discipline rules. And you said that the ABA code is a is is a code of ethics, whereas the in the California Code is a discipline model. Can you explain that a little more?

Hon. Meredith Jury (Ret.)  48:14 
Now, you know, the reason I know about that is I wrote a concurrence on that case, when I was on the appellate panel, I don't think a batter yet where the attorney that had been sanctioned by the judge for a number of days hadn't complied with the unbundling rules. It's in the ABA rules that we don't have an unbundling you know our meaning that you can have, you can only do part of the case that the whole case and in writing that concurrence, and then I did a whole bunch I wrote because of the currents. I did a whole bunch of programs, including several that for work ethic special lawyers, about the concurrence, I learned that there was this difference, and we're never when they were remodeled remodeling revising our rules a few years ago, the first revision tracks the ABA ethical conduct rule and the Supreme Court and State Bar wherever it was they throw it off. And they because they said we don't we think it is precise enough about how we can discipline lawyers Oh,

Tim Kowal  49:28 
the the ethics guidelines we want to be more specific so that we can bring the hammer down when need be that

Hon. Meredith Jury (Ret.)  49:34  
and the the ironic thing about Sal was talking about they don't bring the hammer down even when they know I don't know in everyday practice as a lawyer if it makes any difference, but I do think it makes a difference to how our State Bar enforces that. Yeah.

Tim Kowal  49:56 
Okay. Judge Jury, as it's I have been thank you very, very much for sharing your time and your expertise on this. Do you have any any closing thoughts or observations about the discussion we've had about the rule 8.2 Snitch rule,

Hon. Meredith Jury (Ret.)  50:10  
I think my last word to lawyers would be when you have the option, go to your court and report it in a way there. And number one, you're less likely to get the backlash, like Stella got freshly polluted environment, because you were used to lawyers are used to being in that setting. And they're used to the authority of the court discipline, if they don't do the right thing. Yeah. So I would think that if they have the option to take it there, they can take it there. I

Stella Havkin  50:41 
agree, especially in bankruptcy, we have so many other options of handling it, rather than going to the State Bar. The only issue with that particular scenario was that he wasn't a bankruptcy lawyer, and he was really just a creditor. Whereas if it was a bankruptcy lawyer, it would have been dealt with very differently, very differently.

Hon. Meredith Jury (Ret.)  51:01 
I would say that when I first thought we were going to do this program, my major worry, and it was a worry of some of our audience when we did it was that it would be over reported that people would run off when there's a discovery thing, and every report and under 8.3. And I don't know that that will happen. I still fear that people will do that. I'm

Stella Havkin  51:24  
going to end it with my I had a case and I just remembered about it, how it was handled. I I substituted in an A to a chapter 11 case. And there was a filing by a creditor to dismiss the case for bad faith, because of certain monthly operating reports had zeros on it and all kinds of information. And I had the client on the stand during the evidentiary hearing. And we were about to take, we were taking a break. And the client says to me, Well, you know that I never signed any of these things. I said, What do you mean, you didn't sign anything? He said, Well, when I got when I was hired, the lawyer said, because I'm in another state, and you're here, whatever sign here and he had a stamp. So it turned out that he was stamping every document filed with the court, and the client never saw it. So after the break, I said, I need to recall this witness right now. So I would call the witness and and we ended up visiting my Perry Mason moment and putting up this piece of paper going look, they all look the same. And the judge takes breaks. Now wait a minute, to start planning out all of the documents and and we realize that it was a complete fraud on the court of these documents. And the client had no idea because he'd been receiving these things after the real estate case didn't get dismissed. And I had an I needed where I had to call the Department of Justice. The US trustees office who oversees these, the lawyers who get money for the chapter 11 lawyers get money from the cases. So it ended up this is a perfect example how the bankruptcy court system can deal with it, it was reported, I reported it to the US trustees office. In fact, the judge told me go report it and the judge reported it to the panel. And it was dealt with by denying the lawyer his feeds. In that scenario, I think more should have been done because I started looking at this was a pattern of conduct. So I think there are ways of dealing with it. We never reported them to the bar. And maybe now that the rule is here, I probably would have had the duty to go call up and say look what he's doing. But this is before this was going on. But I think there are other ways of dealing with it. And I didn't have the backlash on it, because the judge dealt with it as well and Department of Justice dealt with it.

Hon. Meredith Jury (Ret.)  53:48  
I would only add to that, and then it's time to move on know what we really want. Our disciplinary panel stay. Shall I mention when our three judge panel and additional attorneys before the bankruptcy court makes a ruling that does get reported to the bar? Those are reported opinions and they are reporting to the bar. How

Tim Kowal  54:08 
long do the does the report process take from the time that that a report is made? And assuming the State Bar is going to take action and you get a decision? I'm trying to gauge how long will it will it take before we have a preliminary sense of how effective the snitch rule is? Or or or how effective it is or how problematic it is.

Hon. Meredith Jury (Ret.)  54:27 
That would be a total? Yes.

Tim Kowal  54:29  
Okay. I'm guessing probably a couple of years at least. Yeah, I

Hon. Meredith Jury (Ret.)  54:32  
can't imagine less than that. Yeah. Okay.

Tim Kowal  54:35 

Well, we'll have to invite you back in in two or three years to assess.

Hon. Meredith Jury (Ret.)  54:43 
To see whether anybody has done anything.

Tim Kowal  54:45 
That's okay. All right. Well, Jeff, I think that's gonna wrap us up for today. Again, we want to thank casetext for sponsoring the podcast each week when we include links to cases we discussed we use casetext daily updated database of case law statutes regulations codes and more as well as the the ABA model rules and the California Rules of Professional Conduct listeners of the podcast enjoy a special discount on casetext basic research when they visit casetext.com/calp. That's casetext.com/calp.

Jeff Lewis  55:15 
Yeah, and if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. All right, thanks

Tim Kowal  55:26  
again, Judge Jury and Selahattin.

Stella Havkin  55:27 
Thank you have a good weekend.

Announcer  55:29  
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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