The California Supreme Court recently adopted California Rule of Professional Conduct 8.3. Fondly known as the “snitch” rule, it requires California lawyers to report serious misconduct by other lawyers to the State Bar, including criminal acts, fraud, dishonesty, or misappropriation. The Rule was adopted after an exhaustive process, including multiple drafts and more than one round of public comment. The controversy surrounding the Rule has been the subject of much coverage in the legal and general press and many opinion articles.
At the same time, flying well under the radar, the Legislature adopted new Bus. & Prof. Code section 6090.8, effective January 1, 2024, as part of Senate Bill 40, signed by Governor Newsome in September. In contrast to Rule 8.3, the process surrounding its adoption as proceeded almost wholly outside the public eye.
The essence of the new reporting requirement appears in subsection (a) :
(a) (1) A licensee of the State Bar who knows that another licensee has conspired to engage in or has engaged in any of the following shall inform the State Bar: (A) Seditious conspiracy as prohibited under Section 2384 of Title 18 of the United States Code. (B) Treason as prohibited under Section 37 of the Penal Code or Section 2381 of Title 18 of the United States Code. (C) Rebellion or insurrection as prohibited under Section 2383 of Title 18 of the United States Code. (2) For the purpose of this subdivision, “knows” means actual knowledge of the fact in question. A licensee’s knowledge may be inferred from circumstances.
Sub-section (b) exempts disclosure of information protected by the attorney-client privilege or gleaned through the State Bar’s diversion program for lawyers with substance abuse or mental health issues.
Sub-section (c) a complaint made under the section “with the intent to intimidate, harass, or otherwise deter a fellow licensee from engaging in the lawful practice of law” is professional misconduct.
The impetus for passing is obviously the criminal and disciplinary cases brought against lawyers who allegedly assisted former President Trump in his efforts to overturn the 2020 election. Trump lawyer John Eastman, licensed in California, has been on trial for many months on discipline charges related to these actions (State Bar Court case no. 23-O-30029.) We are now awaiting the hearing judge’s decision.
While this section is new, the idea that treason, sedition, or insurrection might furnish a cause of discipline is not new. In 1951, during the height of the “Red Scare,” the Legislature enacted Bus. & Prof. Code section 6106.1: “Advocating the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, constitutes a cause for disbarment or suspension.” Its fellow traveler from 1951 is Bus. & Prof. Code section 6064.1: “No person who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, shall be certified to the Supreme Court for admission and a license to practice law.”
There is no public record of any lawyer discipline under section 6106.1. Eastman was not charged with violating this statute but with failure to support the law (6068(a)), misleading courts (section 6068(d)), and moral turpitude (section 6106.)
On the admissions side, there is Konigsberg v. State Bar (1959) 52 Cal.2d 769. There, on remand from the United States Supreme Court, the California Supreme Court held that Konisgberg’s refusal to answer the Bar questions “as to his membership in or affiliation with the Communist Party obstructed investigation of his statutory qualifications [i.e., section 6064.1]” and the Committee’s refusal to recommend petitioner for admission based upon his refusal to answer such questions about his relevant activities, and not upon the activities themselves, did not infringe upon petitioner’s constitutional rights under the First and Fourteenth Amendments (emphasis added.) The United States Supreme Court declined certiorari.
Some decisions from other states have imposed disbarment for activities considered treasonous. During an earlier “Red Scare” in the 1920s, Elmer S. Smith in Washington State was permanently disbarred on the charge that “he has advocated and approved sabotage, syndicalism, and general violation of the law as a means of social reform” in public addresses since 1919. In re Smith ( 1925), 133 Wash. 145, 146, 233 P.2d 288. For a thorough treatment of Smith and similar cases, see Moliterno, Politically Motivated Bar Discipline, 83 Wash. U.L.Q. 725[1]
The Office of Chief Trial Counsel would undoubtedly disagree that the Eastman discipline prosecution is politically motivated. That is part of Eastman’s defense. Of course, Senator Umberg and most of his fellow Legislators would disagree that section 6090.8 is politically motivated.
You don’t have to be in the Trump camp to be skeptical about whether section 6090.8 will have any practical effect. It suffers from the same practical problems as Rule 8.3 does in mandated reporting. Only more so.
Will California lawyers now have to memorize the statutory definitions of seditious conspiracy, treason, rebellion or insurrection, to be ready to report when they “know” another lawyer is engaged in these activities? Wouldn’t a successful disciplinary prosecution have to establish (by clear and convincing evidence) that they the lawyer knew these statutory definitions, seemingly necessary to have actual knowledge? California Penal Code 37, for example, defines treason this way: “Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and comfort, and can be committed only by persons owing allegiance to the state.” The Federal definition of treason (18 USC 2381) is very similar “…owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.) Insurrection isn’t defined at all in 18 USC 2383: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” Seditious conspiracy (section 2384) is a little more precise:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
So are we are largely left with the Potter Stewart test: ”I can’t define it but I know it when I see it”? Consider John Eastman, the apparent inspiration for the statute. Would a California lawyer observing John Eastman engaged in the conduct he is charged with in the discipline. Most of his conduct was charged as misrepresentation in violation of Business and Professions Code section 6106 or misleading a court in violation of Business and Professions Code section 6068(d) (counts 2-11). Count 1, which is 15 pages long, charges a violation of Eastman’s duty to support the law of the United States but does not cite any of the statutes contained in new Section 6090.8 but violations of Article II, Section 1, the Twelfth Amendment of the United States Constitution. the Electoral Count Act (3 U.S.C. § 15) and obstructing the Joint Session of Congress on January 6,
2021, in violation of 18 U.S.C. § 371.
So what is the rationale behind this statute? The Legislative analyses talk a lot about Tom Girardi and the poor performance of the State Bar but not at all about the danger posed by treasonous lawyers. The original purpose of the bill was to impose a statutory duty to report serious professional conduct roughly identical to ABA Model Rule 8.3. It is clear that this was meant to pressure the State Bar and the Supreme Court to adopt a version of Rule 8.3. In the rush to adopt the California version, constant reference was made to SB40. The pressure campaign worked; the Rule was adopted in record time, leaving a hole in the bill that was soon filled, out of nowhere, with the current text of 6090.8.
This best that can be said about this statute is that it might have some deterrent effect on California lawyers contemplating treason, insurrection or sedition, now knowing that they might be reported the State Bar. What the State Bar would or could do with those reports is unclear although the statute that such a report made to harrass another lawyer or deter them from the lawful practice of law is professional misconduct.
In all likelihood, section 6090.8, like section 6106.1, will remain on the books only as a monument to a strange era in American history.
[1] https://journals.library.wustl.edu/lawreview/article/id/3584/