We now have three opinions from the California Courts of Appeal addressing counsel’s use of AI-generated citations. What lessons can be gleaned from comparing these decisions? Specifically, what do they say about the possible disciplinary implications of the use of AI generated hallucinated citations?

The first decision was Noland v. Land of the Free, L.P. (2025) 114 Cal.App.5th 426, filed on September 12, 2024. This was followed in short order by People v. Alvarez (2025) 114 Cal.App.5th 1115, filed on October 3, 2025, and the most recent of our trifecta, Schlicter v. Kennedy, filed on November 17, 2025.

In each of these cases, counsel was sanctioned in an amount above the $1,000 threshold for reporting to the State Bar of California (Bus. & Code §6068(o)(3). Independent of the lawyer’s duty to report the sanction, the Court of Appeal in each case referred the matter to the California Bar, as required by Cal. & Prof. Code, § 6086.7(a)(3) and Cal. Rule of Ct. 10.17. So we know that each of the lawyers involved will be investigated. The discipline prosecutors in the State Bar’s Office of Chief Trial Counsel (OCTC) take complaints and referrals from judges very seriously.

And, of course, AI hallucination cases are happening almost every day. There is even a website tracking them https://www.damiencharlotin.com/hallucinations/. Tracking them not only in the United States but all over the world. The trend seems to be increasing.

Noland, from division 3 of the Second Appellate District, is the first published California case to deal with AI hallucination. It is, as the Court of Appeals remarked, otherwise unremarkable, an appeal of a summary judgment by the plaintiff in an employment case, that would almost certainly be an unpublished decision but for the fact that nearly all the citations in the plaintiff/appellant’s opening brief were AI hallucinations. These were undetected by counsel because he did not read or check the cases. The Appellate Court issued an order to show cause (OSC) to counsel prior to oral argument, requiring him to explain why he should not be sanctioned for filing a frivolous appeal. He responded by admitting that he used AI to write the brief but that the appeal was otherwise meritorious. While taking full responsibility for the fake citations, he claimed he was unaware that generative AI could hallucinate citations, and he has since educated himself about those dangers.

The Court of Appeal declined to allow counsel to file amended briefs. It found that a sanction for filing a frivolous appeal was appropriate. The court bottomed its analysis on Code of Civil Procedure section 907, which allows for sanctions where an appeal is frivolous or intended for delay and section 128.7, providing that attorney can be sanctioned for submitting pleading for which the attorney does not have a belief “formed after an inquiry reasonable under the circumstances” that the “legal contentions therein are warranted by existing law.” The Court also cited Cal. Rule of Ct. 8.276(a)(4) permitting sanctions where a party unreasonably violates the California Rules of Court, and California case law, including Marriage of Flaherty (1982) 31 Cal. 3d 637, for the proposition that an appeal is frivolous if it is prosecuted for an improper motive or indisputably has no merit. The Court also cited a number of non-California cases imposing sanctions of AI hallucinated citations.

The Court of Appeal did not discuss any Rules of Professional Conduct, including Rule 1.1, which governs competence, or Rule 3.3, which governs candor toward a tribunal. Rule 1.1 was amended several years ago to include new Comment 1: “The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.” Rule 3.3(a)(2) states that a lawyer shall not “knowingly misquote to a tribunal* the language of a book, statute, decision or other authority.” Emphasis added.

The lack of citation to the Rules of Professional Conduct is not surprising. The Courts of Appeal have no jurisdiction to enforce these Rules, beyond the mandate in statutes and the California Rules of Court to report “misconduct” to the State Bar of California. There is ample authority supporting the imposition of sanctions, and counsel was sanctioned $10,000.

But the Appellate Court in Alvarez (Division 1 of the Fourth Appellate District) was not so restrained. It did cite Rule 3.3(a)(2) in its order to show cause and alleged that the lawyer had violated it, and also alleged that the lawyer had violated his duty of candor under Business and Professions Code section 6068(d). The offending document in Alvarez was an opposition to dismissal in a criminal prosecution matter. The attorney in this case also responded to the OSC and took responsibility for the AI hallucinated citations, explaining that he relied on his staff to draft the opposition and did not closely check it despite being aware of the dangers of AI hallucination.

The criminal prosecution context was very important to the Fourth DCA’s analysis:

The conduct here is not as egregious as what occurred in Noland. But it is particularly disturbing because it involves the rights of a criminal defendant, who is entitled to due process [citation] and representation by competent counsel [citation]. Courts are obligated to ensure these rights are protected. [citations] When criminal defense attorneys fail to comply with their ethical obligations, their conduct undermines the integrity of the judicial system. It also damages their credibility and potentially impugns the validity of the arguments they make on behalf of their clients, calling into question their competency and ability to ensure defendants are provided a meaningful opportunity to be heard. Thus, criminal defense attorneys must make every effort to confirm that the legal citations they supply exist and accurately reflect the law for which they are cited. That did not happen here.

Alvarez, slip opinion at page 4. While finding counsel’s conduct in Alverez less egregious than Noland’s, the Court of Appeal also found him culpable of serious misconduct for a lack of candor to the trial court, in violation of section 6068(d), which wasn’t addressed in the Noland decision. The Court of Appeal sanctioned counsel with a $1,500 fine.

Schlichter is the last case of our recent trifecta, from the Division 2 of the Fourth DCA. Schlicter, like Noland, is a civil case involving hallucinated citations in an appeal.

 Like Noland, and unlike Alvarez, there is no discussion of the attorney’s duty of candor under Rule 3.3 or section 6068(d). The Schlichter court’s analysis centered on the lawyer’s unreasonable violation of California Rule of Court  8.204(a)(1)(B) “by not supporting] each point with citations to real (as opposed to fabricated) legal authority” which is sanctionable under rule 8.276(a)(4).

But unlike both Alvarez and Noland, the Schlichter court found the lawyer’s confusing responses to the appellate court’s OSC to lack candor and credibility. Notwithstanding that, the court issued a sanction of only $1,750, far less than the $10,000 in Noland and only slightly more than the $1,500 in Alvarez.

Predicting what the State Bar will do with these three cases is a long walk in a dark tunnel with only the dimmest candle to light the way. There are no published discipline cases to light the way, and there may not be for some time, if ever. But some probabilities can be discerned.

The lawyer in Noland seems to have the best chance of avoiding discipline, based on his testimony that he was unaware of the dangers of AI hallucination. If this testimony is credited, the State Bar is probably looking at a violation of Rule 1.1, the competence rule. The duty of competence includes the duty to understand the risks and benefits of technology used in the practice of law, as set forth in Comment 1 to the Rule, discussed above. The violation here might as centered on the failure to be aware of the risks of AI as on the failure to check the citations. 

An unknown factor might be the “wilful ignorance” doctrine recently elucidated in the Review Department’s recent Trimarche case (In the Matter of Trimarche (Review Dept. 2025) 6 Cal. State Bar Ct. Rptr. 145. The Review Dept. found that Trimarche’s conscious effort over four years to avoid learning about the applicable rule meant he could not have had a reasonable good-faith belief that the rule did not apply to his conduct. “Willful blindness is equivalent to actual knowledge.” A disciplinary investigation might very well drill down on how this lawyer managed to avoid the substantial discussion about the danger of AI hallucination over the last few years.

Counsel in Alvarez seems to have the worst chance of avoiding discipline, given the Court of Appeal’s legal conclusion that he violated his duty of candor to the court. He admitted that he was aware of the danger of AI hallucination and yet did not check the citations, instead relying on his staff. Civil findings are entitled to great weight in State Bar Court if supported by substantial evidence. Does the evidentiary record really support the lack of candor finding? Questions like these provide reasons why the civil courts (as in Noland and Schlicter) might do well to avoid attempting to enforce rules and statutes within the ambit of the disciplinary system. Alvarez feels like a competence case, not a candor case, a conclusion that the Court of Appeal itself seems to have accepted by finding the conduct less egregious than Noland.Schlicter is a tough call, mainly because the lawyer’s explanation in response to the court’s OSC is so confusing. It really looks like the lawyer had no idea why the AI hallucinations occurred (“If I knew how it happened, it would not have happened.”)  This is consistent with a common thread in many of the AI cases of the work actually being done by someone else. The competence violation is there, but if the State Bar believes that the lawyer was not candid with the Court of Appeal, it could turn out to be more, perhaps even crossing the threshold for public discipline.

Money makes the world go ’round, as Joel Grey reminded us in Cabaret. But there is also much worldly value in wisdom, as the philosophers hold. So if you can acquire wisdom about money, it seems you have double-dipped.

Wisdom about money can be found in unexpected places. One place is the Arbitration Advisories published by the State Bar of California. These authoritative memoranda were originally written by the California Bar’s Mandatory Fee Arbitration (MFA) Committee to guide the deliberations of California’s volunteer fee arbitrators in the mandatory fee arbitration program established by Business and Professions Code sections 6200 et seq. In 2019, the MFA was integrated into the California Bar’s Committee on Professional Responsibility and Conduct (COPRAC), the body that writes California formal legal ethics opinions.

That integration has been fruitful. The Arbitration Advisories were always meticulous, well-reasoned and well-researched but they are even better now in my view with more legal ethics analysis.

Recently approved Arbitration Advisory 2025-1, effective May 22, shows you what I mean. Entitled “Determination of A Reasonable Fee,” it replaces the valuable prior advisory 1998-03 with the same name with expanded analysis, examples, and ends with a list of 28 relevant questions to be asked in reasonable fee analysis. The Arbitration Advisory is a hidden treasure not only for fee arbitrators, but for practicing lawyers, and lawyers who advise practicing lawyers, about the ethics of fees.

The Arbitration Advisories are not well known but they deserve to be,

Last week, the California Legal Ethics blog examined a new proposal pending before the State Bar of California to step up enforcement activity against uncertified legal referral services. At that time, the impetus behind this proposal was not clear. Now, more information makes its provenance clearer.

Two bills are pending before the California Legislature that would dramatically change the legal landscape regarding lawyer advertising and litigation financing.

SB 37 would add new Business and Professions Code section 6153 that would create a private right of action for violations of current section 6152, which prohibits capping. This bill would allow for statutory damages up to $100,000 per violation, attorney’s fees, injunctive relief, and “any other relief the court deems proper.”

This bill would also add new Business and Professions Code section 6156.5, which would create a private right of action for violations of current section 6155, the statute requiring lawyer referral services to be certified. Remedies would be the same as those in the proposed new section 6153.

The remedies under both new statutes are specifically independent of “any enforcement action or inaction by any governmental agency or official,” i.e., the State Bar of California.

SB 37 would also strengthen the largely ignored statutes in Article 9.5 of the Business and Professions Code, entitled “Legal Advertising,” otherwise known as the “Larry Parker Law.”

Section 6157 would have more precise definitions of “advertise” and “advertisement”, the later to be defined as “any communication, through any written, recorded, or electronic means, whether available to, or directed generally to, members of the public or to a limited group of individuals, that provides information concerning a lawyer or the lawyer’s services for the purpose of encouraging individuals to secure the services of the lawyer or their law firm.“

Section 6157.2 would be amended to prohibit misleading, deceptive, or false statements, words, or phrases regarding a lawyer’s or law firm’s skills, experience, reputation, or record. It would also be amended to require the location or the address of record listed with the State Bar for the lawyer or law firm.

Finally, the section would be amended to provide that the current provision allowing for a civil action enforcement action may be maintained by A consumer who was misled by an advertisement in violation of this section, not just a “person.”

To view the full bill text, go to https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202520260SB37.

 AB 931 takes a different approach. Current Business and Professions Code section 6156 would be renumbered as 6155.1, and the current civil right of action for violating section 6155 would be maintained through Business and Professions Code sections 17206 (unfair competition) or 17536 (false advertising).

However, the proposed new section 6156 would prohibit fee division between a California lawyer and an out-of-state alternative business structure, defined as any entity that provides legal services while allowing non-attorney ownership, management, or decision-making authority. Remedies include statutory damages, attorney’s fees, injunctive relief, and State Bar discipline.

AB 931 would also add an entire article (new number 17) to Chapter 4 of the Business and Professions Code regulating consumer legal funding. Among many other provisions, litigation financing companies would be prohibited from paying or accepting any consideration to any attorney, law firm, or any of their employees for referring a consumer to the company. They would also be prohibited from referring “in furtherance of legal funding” a customer or potential customer to a specific attorney, law firm, or any of their employees, except that they are not prohibited from “referring a consumer to a publically available attorney referral service operated by a local bar association of the State Bar of California.”

To view the full bill text, go to https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202520260AB931.

SB 37 is the obvious impetus of the State Bar’s renewed interest in enforcing the legal referral service rules. But the question remains: why now?

Both SB 37 and AB 931 are sponsored by the Consumer Attorneys of California (CAOC). CAOC’s director of litigation cites the threat proposed by “tort reform advocates” inflamed by recent advertising touting a $4 billion settlement as evidence of unchecked and unethical attorney advertising, an initiative by the Los Angeles City Attorney’s Office to limit non economic damages (pain and suffering), a move by Uber to limit uninsured and under-insured motorist coverage somehow related to a nasty advertising campaigns seeking potential clients against Uber and advertising abuse occurring after the Pacific Palisades and Eaton fires.

The backdrop against all this is the relatively passive approach that the State Bar of California has taken to advertising and uncertified LRS complaints for the last few decades. The reasons for this approach make sense. The truism is that consumers don’t complain about lawyer advertising. The general public has come to accept it and largely tunes it out amid the noise of the hundreds, if not thousands, of advertising messages they are exposed to every day. Of course, that means that lawyers have to push the boundaries of ethical rules to get attention and boost the signal past the noise. Bigger billboards, louder ads, and the thing that gets everyone’s attention, the promise of big money. The money lure is so powerful that Business and Professions Code section 6158.1(c) makes a “message referring to or implying money received by or for a client in a particular case or cases, or to potential monetary recovery for a prospective client” presumptively misleading in an electronic ad. “A reference to money or monetary recovery includes, but is not limited to, a specific dollar amount, characterization of a sum of money, monetary symbols, or the implication of wealth.” Remember “Larry Parker Got Me $2.1 Million.”

There isn’t much evidence for it but maybe the general public is tired of lawyer advertising. However, there is a whiff of protectionism about these bills, especially the AB 391 provisions on fee division with out-of-state ABSs. The fervor for abolishing Model Rule 5.4 has faded away, leaving Arizona as the only state holding the fort (although some might say holding the bag). Fee division between non-
Arizona lawyers and Arizona ABSs have been discussed as a way to extend their reach nationwide. California is still the Golden Goose of mass tort and big-damage personal injury lawyers. The California legislature’s hostility to ABS was well established when it pulled the plug on ATILS in 2022. The prospect of an Arizona ABS flush with non-lawyer investor cash and a big advertising budget can’t be comforting to the established injury lawyers in California.

The scuttlebutt is that both bills will probably be passed. However, their mere pendency is going to influence how the State Bar, a creature of the Legislature after all, approaches its disciplinary priorities. We have already seen that with the proposal of increased enforcement of the LRS rules. Part of that proposal is warning letters to lawyers who participate in an uncertified LRS. Perhaps even before these bills pass, but certainly after, the Office of Chief Trial Counsel may actively seek out potential advertising prosecutions, maybe even utilizing the Larry Parker Law for what might be the first time. It would probably be an uphill battle; the few available case law precedents suggest that only a massive scheme of deception, on par with In Re Morse (1995) 11 Cal. 4th 190 will result in substantial discipline.

This item caught my eye from the Wednesday, March 14 agenda for the State Bar of California Audit Committee meeting:

Here is the PowerPoint deck attached to the agenda item:

The burning question is: why now? Since the enactment of the Certified Legal Referral Service statute (California Business & Professions Code section 6155) in 1987, there has been little enforcement activity by the State Bar of California. There was a flurry of activity in the late 1990s connected with the 1996 plebiscite on the continued existence of the State Bar, when the State Bar felt it had to show lawyers that it was actually doing something for them, not just to them. There was another limited run of enforcement activity after the Jackson v. LegalMatch decision in 2019 (42 Cal.App.5th 760). The Office of Chief Trial Counsel sent letters to a number of attorneys who had accepted referrals from the old uncertified LegalMatch, but no discipline ensued. The State Bar’s civil suit against LegalMatch was “quietly” settled in October 2022.

The natural result of this lack of enforcement activity is that uncertified legal referral services have proliferated like weeds in a vacant lot. Fans of late-night television have probably seen their ads, staged with obvious fake “boiler rooms” staffed by obviously fake lawyers “standing by to take your call!” on obviously fake telephones.

So, again, why now, especially after we know the State Bar of California decided in 2021 that “the Board declined proactive uncertified LRS enforcement activity due to resource limits”? Some have speculated that the public at large is getting genuinely tired of the seeming wall-to-wall attorney advertising that is saturating all media. Color me skeptical. The public has been subjected to this for years now.

I know of no particular Legislative impetus for this new possible enforcement push. If someone out there knows something, please let me know.

For an institution that prides itself on transparency, the State Bar of California sometimes seems to go out of its way to make things more opaque. State Bar Court Review Department decisions are important information. Before March, all Review Department decisions were published on the State Bar Court’s website, easily accessible and nicely categorized into published, publication pending, and non-published decisions. These old decisions are still there, but now there is a link to a list of new Review Department decisions with case numbers that require an expedition into the State Bar Court docket to locate and retrieve the decision. Not a lot of additional work, but enough to cause wonder about what was so difficult or expensive about the old system. But enough of my trivial nitpicking.

The first Review Department decision subject to this treasure hunt is In the Matter of Trimarche, and it is worth the effort. It is a public decision, therefore citeable, pending final action by the California Supreme Court, filed on March 17, 2025.

The respondent lawyer was an experienced environmental lawyer and commercial business litigator for approximately 25 years before embarking on a new venture in April 2015, ominously entitled the “Debt Relief Operation” in the opinion. The Debt Relief Operation had a number of moving parts. At the core was GST Factoring Inc., where Respondent was one of three principals, along with two non-lawyers. The second component was a group of lawyers referred to as the Debt Attorneys, two licensed in California, one in Arizona, and one in Florida. Operational services for the Debt Relief Operation were provided by an entity called Champions Marketing Solutions LLC. Finally, there were a number of debt counselling and debt relief companies, referred to as Affiliates.

GST recruited and contracted with the Affiliates, which were using nationwide telemarketing to solicit potential customers seeking to reduce their student loans. When Affiliates encountered individuals with private student loans, as opposed to federally guaranteed loans, the Affiliates informed them that the Debt Attorneys offered debt relief legal services and referred them to the Debt Attorneys. Trimarche helped edit the telephone scripts the Affiliates used to communicate with potential customers. CMS provided support staff services and acted as the customer service arm of the Debt Relief Operation, including maintaining client communications on behalf of the Debt Attorneys. GST-specifically, Trimarche-also recruited the Debt Attorneys, who generated income for the Debt Relief Operation by providing debt relief services, which were marketed as legal services, to the Affiliate-referred clients.’ Trimarche testified that securing a large number of clients would allow the Debt Attorneys to have greater leverage in negotiating with the lenders. GST entered into an Attorney Factoring Agreement with each Debt Attorney. GST agreed to purchase all accounts arising from providing “legal services to clients in matters relating to student debt elimination.” In effect, the monthly fees paid by the Debt Attorneys’ clients were collected by GST for distribution to the various entities in the Debt Relief Operation.

Trimarche, slip opinion at 3-4. The Debt Relief Operation was successful; from April 2015 to May 2020, GST collected from clients receiving debt relief services approximately $11.8 million in fees, of which Trimarche received around $1.5 million.

But, as you know by now, trouble ensued. It’s shape principally in the form of the Telemarketing Sales Rule (TSR), title 16 Code of Federal Regulations (C.F.R.) part 310, promulgated by the Federal Trade Commission in 2010, at the height of the Loan Mod Wars. The TSR was amended in September and October of 2010 to prohibit the telemarketing of debt relief services requiring an advance fee. The Debt Attorneys fee agreement (written by Trimarche) provided for a contingent fee of 40% of the debt payable in installments up front before any work was done. Trimarch testified at trial that he was not familiar with debt relief services before initiating the Debt Relief Operation, but that he researched the internet to learn about the student debt crisis, and he read various materials to determine strategies that could be useful for the Debt Attorneys in rendering their debt relief services. “Yet, for several years, Trimarche did not inquire about any rules that GST or the Debt Attorneys were obliged to follow when rendering nationwide debt relief services, even when concerns about the legality of the operation were repeatedly brought to his attention.” Trimarche, slip opinion at 7.

Trouble duly arrived in the form of a State Bar disciplinary prosecution of one of the debt attorneys and an action by the late Consumer Financial Protection Bureau, which began a notice of regulatory action and later a Federal Court action that was resolved with a stipulation in July 2020 that the Debt Relief Operation cease operating.

Some years later, the Office of Chief Trial Counsel (OCTC) filed charges against Trimarche in August 2023, alleging that he (1) violated Business and Professions Code section 6068(a) in violating the TSR; (2) violated section 6068(a) in assisting others in violating the TSR; (3) violating California Rule of Professional Conduct 8.4(a) by assisting the Debt Attorneys in violating California Rule 7.1 and 7.3, and violating California Rule 5.5(a) and 5.5(b)by assisting the Debt Attorneys in the the unauthorized practice of law; and, as you might expect, (4) moral turpitude in violation of section 6106, wrapping up all the previous charged misconduct with bright red bow.

Trimarche’s defense to count 1 and count 2 was that he was acting in good faith at most, and made a mistake of law in concluding the TSR was not applicable. “An attorney’s negligent, good faith mistake of law, even when it results in a violation of law, may be a defense to discipline under section 6068, subdivision (a). (See In the Matter of Respondent P (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 622, 631-632.) In finding Trimarche culpable, the hearing judge rejected his defense that he held a reasonable, good-faith belief that GST’s Debt Relief Operation did not violate the TSR. Instead, she determined that he willfully blinded himself to the TSR’s potential application to GST’s activities, despite being generally aware that the rule existed.” Trimarche, slip opinion at page 12. The Review Dept. agreed. “These circumstances establish by clear and convincing evidence that from April 24, 2015, to at least September 24, 2019-over four years-Trimarche consciously avoided learning about the rule. (See In the Matter of Carver (Review Dept. 2016) 5 Cal. State Bar Ct. Rptr. 427, 433 [willful blindness is equivalent to actual knowledge].) Thus, his ignorance of the applicable law cannot constitute a reasonable, good faith belief. (In the Matter of McKiernan (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 420, 427 [“it is [not] appropriate to reward respondent for his ignorance of his ethical responsibilities”].)

The unusual charging of Count 3 did lead to one small victory for Trimarche. The Review Dept., reversing the hearing judge, found that OCTC failed to provide adequate notice of its allegation that Rule 7.1 was violated by misleading marketing language. However, a second basis for a 7.1 violation was upheld – that the marketing materials failed to disclose how the fees would be divided among the different entities. The Review Dept. also reversed the hearing judge and found that Trimarch did assist the Debt Attorneys in providing services to clients where they were not licensed to practice. Trimarche’s defense that he relied on the Debt Attorneys to obtain their own counsel on the UPL issue was rejected as the same type of “wilful blindness” rejected as a defense to the violations of the TSR in Counts 1 and 2.

Ultimately, the Review Department upheld the hearing judge’s recommendation of one year actual suspension and two years probation with conditions, based on the finding that “Trimarche’s serious misconduct impacted 2,600 clients from across the nation and resulted in the collection of $11.8 million in illegal fees.”

While Trimarche will be ordered to pay a $2,500 sanction and the State Bar’s costs, restitution of some of the $1.5 million that Trimarche received was neither sought nor ordered.

So you could say that Trimarche paid a heavy price for his wilful blindness. On the other hand, his misconduct netted him $1.5 million that he did not have to give back. Cases like this often prompt us to ponder the question of “what was he thinking?” The prospect of a big payday can buy a lot of blindness, and once the cart is rolling downhill, it is hard to stop, especially when there are a few others in the cart with you. Lawyers can be clear-eyed about their client’s risks and astonishingly blind about their own. At the risk of tooting my own horn, and that of my fellow ethics lawyers, that is why we exist.

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/

In the Matter of Spielbauer, Review Dept. State Bar Court, case no. SBC-19-O-30700, filed 10/25/23

Within a span of weeks, the Review Department has given us two interesting and well written opinions that illuminate important issues in California discipline jurisprudence. For the California Ethics Lawyer, it is like an early Christmas present. Lest we are call this “fun”, let’s remember that for the Respondents involved in those proceedings (Thibault, filed 10/17/23, and now Spielbauer) the news is grim.

These opinions have at least two things in common.

They both arise from civil court proceedings, Thibault, a motion to disqualify, Spielbauer, a civil action resulting in a finding of fraud and an award of punitive damages. The civil action in Spielbauer had no relation to the practice law. The respondent was involved an real estate transaction where he was requested to furnish a payoff demand as authorized by Civil Code section 2943(b). Respondent issued a payoff demand for$269,500, far in excess of what was actually owed on the loan secured by the property, $7,152.03. The judgment included punitive damages of $332,550, under the authority of Civil Code section 3294. Like Thibaut, Spielbauer failed to report this event to the State Bar of California, as required by Business and Professions Code section 6068.

Both involved a failure to report to the State Bar under Business and Professions Code section 6068(o). Thibault failed to report a judicial sanction (subsection (o)(3).) Spielbauer failed to report the fraud judgment against him (subsection (o)(2).) Which sets up the first of the interesting issues in the Spielbauer opinion.

Deconstructing 6068(o)(2)

Statutory construction is always fun and especially fun with section 6068(o), hardly a model of clarity. (o)(2) says that an attorney has a duty to report the “entry of judgment against the attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.” Spielbauer’s defense to the (o)(2) charges was those five concluding words “committed in a professional capacity.” He contended that that clause modified everything that came before it. His fraud was not committed in a professional capacity therefore he had no duty to report. The hearing judge bought that argument and dismissed the failure to report count. The Review Department reversed. It relied on the “last antecedent rule of statutory construction “a restrictive relative clause usually modifies
the noun immediately preceding it, citing Yahoo Inc. v. National Union Fire
Ins. Co. etc. (2022) 14 Cal.5th 58, 73-74. Thus, the “professional capacity” clause only applies to “gross negligence”, not the other bad stuff that immediately precedes it. This is consistent with Business and Professions Code section 6106, which provides that dishonesty, corrruption or moral turpitude constitutes a cause for suspension or disbarment “whether the act is committed in the course of his relations as an attorney or otherwise.”

The statutory construction issue has potential application to the recently passed “rat” rule, new California Rule of Professional Conduct 8.3, another piece of ambiguous writing despite its many revisions. The rule lists two kinds of bad conduct that demand reporting, criminal acts and conduct involving dishonesty, fraud, deceit or misappropriation, and then jumps directly into this qualifying language “that raises a substantial* question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Does this language modify the duty to report criminal acts? The Office of Chief Trial Counsel (OCTC) has seemingly taken the position that it does, to avoid the absurd result that minor criminal activity would be reportable. Sounds reasonable, especially in light of Comment 4 which advises that reporting is limited to the “those offenses that a self-regulating profession must vigorously endeavor to prevent.” But the comments are not rules and the existence of the last antecedent rule points up the sloppy drafting that it driving many people nuts in interpreting the new Rule.

Duty to Uphold What Law Exactly?

Spielbauer was charged with violating his duty to uphold the law by violating two Civil Code statutes. Civil Code section 2943(e)(4) sets forth a requirement to provide a payoff statement within 21 days of demand. The civil court found fraud liability by providing a false and inflated payoff statement. The civil court also found a basis for imposing punitive damages under Civil Code section 3294. This statute allows a court to award punitive damages in addition to compensatory damages in cases where a defendant acted with oppression, fraud, or malice and clear and convincing evidence supports such a finding. The hearing judge found culpability on two counts of violating Business and Professions Code section 6068(a), one of each statute. Section 6068(a) states that a lawyer has a duty to support the laws of the United States and the State of California. It is a “gateway” statute that allows discipline for violations of law not otherwise disciplinable, including not only statutes but common law (In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, 487; seealso Kafkaesq “Squishy Justice.”) 6068(a) is a broad gateway but not so broad as to accommodated Civil Code section 3294. The Review Department correctly dismissed this count because section 3294 is a definitional statute and does not, alone, define any duty.

Collateral Damage

The mainspring of the opinion is the application of collateral estoppel by the hearing judge. Collateral estoppel may be applied in a disciplinary proceeding to prevent the re-litigation decided adversely to a lawyer in a civil proceeding where five requirements are met: (1) the issues that resulted in the civil court findings are substantially identical to the issues before the State Bar Court; (2) the findings were decided under the same burden of proof applicable to the State Bar Court—clear and convincing evidence; (3) the attorney was a party to the civil proceeding; (4) there was a final judgment on the merits in the civil case; and (5) no unfairness in precluding relitigation was proven by the attorney (In the Matter of Kittrell (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 195, 205.) The application of collateral estoppel in State Bar Court usually flounders on requirement two – the clear and convincing burden of proof. Few civil findings rest on this burden of proof. Typically, the Office of Chief Trial Counsel has to rely on a less stringent standard, the principle that civil findings are entitled to “great weight and a presumption of correctness” where supported by substantial evidence (see In the Matter of Allen (Review Dept. 2010) 5 Cal. State Bar Ct. Rptr. 198, citing Maltaman v. State Bar (1987) 43 Cal.3d 924, 948.) Spielbauer tried to argue unfairness that he was “fatally compromised” by his poorly representation in the underlying civil action but no sale. The conclusive findings are civil fraud inevitable lead to culpability of violating Business and Professions Code section 6106. Spielbauer was ordered to pay $869,276.55, which included $332,550 in punitive damages in the civil case. The collateral damage was a six month actual suspension of his law license. Spielbauer did not help himself by continuing to argue that his actions were just, leading to a finding in aggravation that his was indifferent and lacked insight into his misconduct.

In the Matter of Thibault, Review Department, State Bar Court, case no. SBC-22-O-30033, filed 10/17/23.

There was a time when conflicts of interest, even conflicts leading to disqualification of a lawyer in litigation, seldom led to professional discipline. The trend began to change a few years ago. Increasing awareness of conflicts led to a recognition that disqualification was not always an adequate remedy. In 2015, despite a lack of Supreme Court discipline case law addressing discipline for conflicts of interest, the State Bar added new Standard 2.5, specifically addressing conflicts of interest. The Standard recommends actual suspension where a violation of the conflict rules, chiefly Rules of Professional Conduct 1.7 and 1.8, leads to harm and lesser discipline, stayed suspension or reproval, in cases where no harm resulted.

“Stand-alone” discipline for conflict of interest seems to be relatively rare, although it is difficult to gauge since the State Bar Court stopped publishing Hearing Department decisions in 2019. The published discipline cases from the Review Department involve multiple violations of the Rules of Professional Conduct or statutes from the State Bar Act. So it is with the Thibault decision. The hearing judge found Thibault culpable of (1) failing to obey a court order under section 6103 of the Business and Profession Code; (2) accepting employment adverse to another individual who respondent’s employer previously represented without informed written consent under former rule 3-310(E) of the Rules of Professional Conduct; and (3) failing to timely report a judicial sanctions order to the State Bar under section 6068, subdivision (o)(3). On review, the Review Department upheld these culpability determinations and evidently published the opinion for the reasons stated in the opening sentence: “This case underscores the need for attorneys to understand the broad scope of our conflicts of interest rules, which require the avoidance of adverse interests. and it demonstrates the perils that can result when an attorney is not careful in following the requirements of these rules.”

The facts are a little strange. Thibault worked for another lawyer (Peshawaria) who had previously represented the wife (Rattan) in a marital dissolution proceeding despite the fact that she was not licensed in California. Years later, after Thibault began working for this lawyer, Rattan’s husband Prasad employed the lawyer to represent him in the same proceeding on pending issues in the case related to child custody, child and spousal support, and the division of marital property. She assigned the case to Thibault. Rattan’s lawyer wrote to Thibault and informed her of the conflict of interest. Thibault withdrew but, after leaving the lawyer’s employment, began to represent Prasad again as a solo practitioner, seemingly not understanding the principle of imputed conflict despite having consulted with the State Bar’s Ethics Hotline. (Maybe the most important point here is the Ethics Hotline is not a substitute for obtaining legal advice from an experienced ethics lawyer.) Rattan’s lawyer successfully moved to disqualify Thibault and obtained a $5,000 sanction against her. Thibault waited eight months to pay the sanction. She also waited almost four years to report the sanction to the State Bar as required by Business and Professions Code section 6068(o)(3). This section requires reporting within 30 days of the time the lawyer knows the sanction.

Perhaps Thibault’s initial mistakes stemmed from sheer ignorance. But both the hearing judge and the Review Department found as an aggravating circumstance that she “displayed an attitude that demonstrates she lacks a full understanding of the seriousness of [her] misconduct.” Ignorance alone can kill you. Willful ignorance can kill you more. Thibault continued to argue that she was justified in representing Prasad throughout the pendency of the discipline proceeding. Her position seems especially contumnacious given that she attempted to cross-examine Rattan while representing Prawad at the July 2018 hearing with Rattan’s confidential information provided to Thibault’s former employer, Peshawaria, in 2008! The Review Department carefully noted that an attorney has a right to defend herself vigorously in discipline proceedings (citing In re Morse (1995) 11 Cal.4th 184, 209). Still, discipline proceedings are qualitatively different than other kinds of proceedings where a vigorous defense might not cross the line into a fatal failure to appreciate the nature of the attorney’s duties.

The basis of the section 6103 charge was Thibault’s failure to pay the sanction for eight months. In analyzing the appropriate discipline, the Review Department cited Standard 2.12(a), which prescribes actual suspension or disbarment as the harshest applicable Standard. But the statutory violations, including the failure to report the sanction, seem to be the tail and not the dog here, with the entire course of misconduct really arising from the respondent’s spectacular failure to recognize and avoid the successive representation conflict. The thirty-day actual suspension is all the more damaging because the Supreme Court has now mandated compliance with California Rule of Court 9.20 for every suspension, even a short one. The actual suspension also subjects Thibault to a $2,500 sanction.

Thibault is a significant case that is meant to convey a serious message. Discipline for conflicts of interest is a real possibility now.

The California State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) spent most of its meeting on Friday January 13 drafting a California version of ABA Model Rule 8.3. Model Rule 8.3, entitled “Reporting Professional Misconduct” has been referred to as the “rat” or “squeal” Rule. It says:

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. …

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

California, alone among United States jurisdictions, has no version of Rule 8.3. When California’s Rules of Professional Conduct were revised between 2014-2018, consideration was given to adopting a version of Rule 8.3, but a subcommittee of the rules revision commission voted not to recommend its adoption (see Carr – Model Rule 8.3: The Argument Against.) The subcommittee explained its reasoning this way:

On balance, the members of the drafting team agree with the Board’s prior decision not to recommend a reporting requirement. The pros of adopting a reporting requirement (whether in the mandatory form of ABA MR 8.3 or a hybrid permissive/mandatory form along the lines of RRC1’s proposed rule) include:

1. improving public protection by requiring lawyer reporting of certain known violations of the rules that raise a substantial question about a lawyer’s “honesty, trustworthiness or fitness as a lawyer;” and

2. bringing California’s rules more in line with the ABA Model Rules.

There are also significant cons to a reporting requirement; either the Model Rule or RRC1 hybrid approach would:

1. require a lawyer to determine whether a known violation raises a substantial question as to (or implicates) the lawyer’s honesty, trustworthiness or fitness as a lawyer;

2. despite the recognition that reporting could be trumped by the duty of confidentiality with respect to information learned in the course of representation of a client, pose a potential for conflict with that rule, or with the attorney-client relationship, to the extent lawyers might feel obligated to discuss waiver of confidentiality to further the reporting interests of the lawyer rather than the client’s own interests;

3. pose a potential for conflicts with a lawyer’s duty of loyalty if reporting posed a risk of adversely affecting a current or former client’s interests; and

4. potentially be viewed as inconsistent with the discretionary reporting policy reflected in Canon 3D(2) of the California Code of Judicial Ethics that states: “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.” (Emphasis added.)

On balance, the drafting team agrees that the cons outweigh the pros, particularly given that California has never had such a reporting requirement, and that the analysis required for lawyers to determine the scope of any reporting requirement seems inconsistent with this Commission’s charge to retain the historical nature of the California Rules as a “clear and enforceable articulation of disciplinary standards.”

Oh, the carefree days of our (relative) youth!

The Girardi Scandal broke in December 2020 and since then the days of the State Bar of California have not been carefree (see Kafkaesq: The Widening Gyre of Girardi-Gate), especially after the State Bar admitted that it had made mistakes in handling the many complaints against Girardi. Notable is the way the Los Angeles Times has not only covered the story but is driving story, including filing an action in the California Supreme Court to push the State Bar into disclosing the Girardi files. On October 28, 2022, the Los Angeles Times published a story on California’s lack of a rule requiring attorneys to report misconduct (“When It Comes to Crooked Colleagues, California Attorneys Can Remain Silent“). Within weeks, the push was on the enact a California version of Rule 8.3. That push gained enormous momentum when California Senator Tom Umberg, chair of the Judiciary Committee, introduced Senate Bill 42, which would add new section 6090.8 to the California Business and Professions Code:

6090.8. (a) A licensee of the State Bar who knows that another licensee has engaged in professional misconduct that raises a substantial question as to that licensee’s honesty, trustworthiness, or fitness as an attorney in other respects, shall inform the State Bar. (b) This section does not require disclosure of information otherwise protected by the attorney-client privilege or information gained by a licensee while participating in the Attorney Diversion and Assistance Program.

SB 42 seems a transparent move to force the Supreme Court (with the help of its administrative arm, the State Bar of California) to enact Rule 8.3. Pronto! And it is working. The proposed version of Rule 8.3 that COPRAC drafted in real time on Friday January 13 will be put out for a truncated 30 days public comment period and then moved directly on the Board of Trustees agenda for approval, rather than allowing COPRAC to follow its regular procedure of evaluating the public comment and refining its work product. The short public comment period will make it difficult for local bar associations, who work slowly, typically requiring their legal ethics committees to evaluate proposals first, to offer public comment. And everyone is signaling that something had to put in place quickly before the Legislature imposes its own, poorly thought-out statute on the State Bar and the lawyers of California. It seems hard to imagine that the California Supreme Court will say no.

One of the flaws in Model Rule 8.3 as noted by the drafting committee in 2016 is that successful prosecution requires the discipline authority to prove by clear and convincing evidence that the attorney knew a complex thing: that another lawyer has (1) violated the Rules of Professional Conduct and (2) that the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. As a result there have not been a lot of prosecutions for failure to report. Rule 8.3 is not likely to have a substantial impact on public protection. It would have had no impact on the Girardi matter; the (as framed by the media coverage, without first hand knowledge) problem was not that the State Bar of California did not know, but that it knew but did nothing

But it really isn’t about public protection. It is about public confidence in the State Bar of California. By enacting Rule 8.3, the State Bar demonstrates that it is doing something, even if that something is not particularly helpful.