When a Blue Ribbon Commission convened in 2015 to improve ethics rules for attorneys in California, a federal prosecutor named George Cardona was tasked with seeking a proposed rule requiring attorneys to report misconduct by their attorneys. peers.
Forty-seven states already had mandatory reporting laws and two more had laws stipulating that attorneys must make such reports. California was the only exception. In the Golden State, there was no expectation — let alone an obligation — for attorneys to alert authorities to wrongdoings within their ranks, no matter how serious or damaging.
Yet, after much debate, Cardona and the majority of commissioners rejected the proposal.
Seven years later, Cardona has a new job and a different opinion. As the state bar’s senior attorney or the attorneys’ chief prosecutor, he grapples daily with the wreckage of the Tom Girardi scandalin which one of the state’s most prominent lawyers got away with embezzling his clients’ money for decades.
“One of my overarching goals is to somehow restore faith in the disciplinary system. And I think ultimately having a rule like this in place could help that,” recently Cardona told The Times.
The California legal communitywho with 266,000 lawyers is the largest in the country, has long resisted a mandatory reporting law. Some opponents have cited the state’s particularly broad client confidentiality obligations, while others express a general disdain for reporting any other member of the profession, no matter how compromised.
The sentiment that reporting unethical behavior is unfair is so pervasive in California that many attorneys and the state bar, the state agency that oversees the legal field, have used popular language to refer to the requirement. like the “snitch” or “rat” rule.
This contrasts with the prevailing view in other states. In Louisiana, where a version of the rule has been on the books for 35 years, “it’s not the subject of much conversation or angst,” said Charles Plattsmier, who has since served as the chief prosecutor for the Office of the Council. Disciplinary of Louisiana. 1996. Lawyers ‘recognize it’s a duty they have and we get pretty good compliance’.
Although the number of mandatory reports he receives is small, he said, “this is usually one of the most important reports we receive. This alerts us to some of the most serious misconduct that we need to act on quickly to alert the public.
In Girardi’s case, there was evidence in court cases as early as the 1990s that he mismanaged settlement money and made his colleagues pay court costs, but his fellow lawyers said they were reluctant to report the powerful litigant to the state bar. Girardi cultivated his influence with agency investigators and other officials and avoided discipline until his company collapsed two years ago.
In reality, it was not lawyers from California, but from a state with a strict reporting law – Illinois – who ultimately brought down Girardi. In 2020, a Chicago firm working with him in a plane crash lawsuit went to the judge handling the case about millions of dollars the LA attorney had failed to pay the widows and to orphans.
U.S. District Judge Thomas Durkin in Chicago referred Girardi to federal prosecutors for investigation and launched an investigation into what two other attorneys in his firm, Girardi Keese, knew and did about the backhanded air crash regulations.
Testimony at a hearing last year showed that Girardi’s son-in-law, David Lira, and another senior lawyer at the firm, Keith Griffin, knew he had withheld settlement money and was stringing together grieving families with letters containing bogus apologies. Neither reported Girardi to the state bar — and indeed, they weren’t required to do so under California rules.
“I am satisfied that Mr. Griffin and Mr. Lira knew that these letters were scandalously false,” the judge told a hearing. He has yet to decide if the couple should be despised.
Both Lira and Griffin denied any wrongdoing, saying they were company employees who had no control over their boss’ actions or the handling of money.
Other testimonies emphasized the idea that Girardi’s ethical failures were widely known in his home country. Two witnesses from the Chicago firm said that when they consulted with another LA attorney, Robert Finnerty, who had spent years working at Girardi Keese, he advised them to find a low-key solution for the missing settlement funds.
“Everyone knows Tom has been stealing money for years,” Chicago attorney Jay Edelson said, citing Finnerty. Edelson testified that what appeared to be a tacit acceptance of Girardi’s theft disgusted him. “I must have taken about 15 showers after that.”
Finnerty did not testify at the hearing. In an interview, he disputed the testimony: “I didn’t utter any of those words.” He admitted knowing that Girardi had stolen millions from another client, a burn victim and his family, two years earlier, which prompted him to leave the company. He said that at the time he investigated whether California had a mandatory reporting law.
“I was surprised we didn’t have any,” he said. He did not notify authorities, although he did help the family of the burn victim obtain a judgment against Girardi.
The state bar is investigating Girardi’s colleagues, Lira and Griffin, for their representation of the plane crash clients, according to correspondence with Edelson reviewed by The Times. In a letter last year, a state bar prosecutor wrote that the lack of a mandatory reporting law prevented a broad investigation into what they knew about corruption at the company.
Edelson, whose firm has called for a broader investigation, said in a phone conversation, state bar prosecutors called the law a “snitch rule.” The phrase also appeared in a State Bar publication a dozen years ago.
Cardona, the bar’s chief prosecutor, said he found the moniker “unfortunate”, adding: “It should be seen as a rule that would essentially require lawyers to participate in verifying the proper functioning of the profession.”
The basis for mandatory reporting laws in other states is a model rule developed by the American Bar Assn. in 1983: “A lawyer who knows that another lawyer has committed a violation…which raises a substantial question as to that lawyer’s honesty, reliability, or fitness in other respects, must inform the competent professional authority.”
The law varies from state to state, with some jurisdictions setting stricter or looser standards for reportable misconduct and Georgia and Washington using language that makes reporting a colleague an expectation but not a requirement. .
There is no current publicly available data on how often attorneys in states with laws report misconduct or how often such complaints result in successful investigations.
Some states, including Louisiana, have a history of prosecuting non-filers. The most dramatic case in Bayou State involved a former prosecutor dying of cancer who confided in an attorney friend that he had withheld exculpatory blood evidence in a case years earlier.
The friend did not alert the authorities. Five years later, a man the former prosecutor had tried for murder was about to be put to death by lethal injection. His defense discovered the exculpatory blood evidence just a month before his scheduled execution. The lawyer friend then came forward and testified about the former prosecutor’s confession in a court hearing, but authorities still prosecuted him for violating the mandatory reporting law. He kept his license but was publicly reprimanded.
California first considered and rejected a mandatory reporting law in the 1980s. Its legal community traditionally considered itself too large and established to need guidance from an outside group like the ABA. Additionally, some lawyers felt that it would be difficult to reconcile the state’s extensive confidentiality obligations, which require a lawyer to keep secret any information they acquire while representing a client, unless the client agrees otherwise. (Lawyers are permitted to reveal confidential information to prevent “a criminal act which the lawyer reasonably believes is likely to result in death or substantial bodily harm to an individual.”)
Two decades later, in 2010, a state bar commission proposed what appeared to be a solution, a proposal that required attorneys to report misconduct if it did not violate their confidentiality obligations and the misconduct amounted to “a criminal indictable offence”.
Kevin Mohr, a professor at the Western State College of Law and consultant to the commission, knew the idea was controversial with rank-and-file attorneys across the state, but, he said, “I thought the proposed rule was nuanced enough for [State Bar’s governing board] could accept it.
They do not have. After heated debates in which some speakers derisively referred to it as “snitching”, the measure was defeated. A re-examination in 2016 also failed.
“There was…a question of how effective it would be,” Cardona recalled of the decision.
Although he reconsidered his position, other commissioners interviewed said they had not.
Toby Rothschild, the former general counsel for the Legal Aid Foundation in Los Angeles, said a lawyer’s job is to represent clients.
“Gossip is not one of them,” he said. Although some lawyers voluntarily report wrongdoing, he said, “there should be some judgment. A lawyer should be able to say… Will it help or hurt my client to make a report?
Another commissioner, Glendale attorney James Ham, called a mandatory reporting law a “frontage” that would do little to stop actual misconduct and trigger a deluge of baseless reports.
“Lawyers are constantly trying to complain that the other side violated this or that rule,” Ham said. “A snitch rule would only make things worse.”
A decade ago, similar predictions were made when Kentucky became one of the last states to adopt a version of the mandatory rule.
“It was feared that there would be a ‘tsunami’ of reports from attorneys against other attorneys when the rule went into effect,” Jane Herrick, chief attorney for Kentucky Bar Assn., said in an email. “That never materialized.”
She said her office has yet to discipline anyone for failing to report a colleague, but lawyers “generally obey.”
Many of those who oppose the laws point out that there is nothing stopping California attorneys from currently reporting to the state bar. Proponents do not find this argument persuasive.
“It’s a matter of standards. It changes the usual behavior,” said Tim Casey, a professor at the California Western School of Law. “Having an obligation…gives lawyers, in a way, a cover to say, ‘I had no choice here, I had to report it. “”