CJEO Formal Opinion No. 2024-025 — Responding to Attorney Misconduct

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion 2024-025
[Issued February 22, 2024]
RESPONDING TO ATTORNEY MISCONDUCT
I. QUESTION
The California Supreme Court Committee on Judicial Ethics Opinions (CJEO or
committee) has been asked: What are a judge’s statutory and ethical obligations to take
corrective action when an attorney engages in misconduct?
Using a hypothetical scenario for context, this opinion provides guidance on
factors judges should consider when responding to misconduct, assessing the nature and
seriousness of the misconduct, deciding what corrective action is warranted, and
determining whether mandatory reporting obligations exist.

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II. FACTUAL SCENARIO1
Before trial, a judge in a civil matter heard a discovery motion brought by
plaintiff, granted the motion, and issued an order. After trial began, plaintiff’s attorney
became concerned about defendant’s compliance with the court’s discovery order.
Outside the presence of the jury, the judge conducted a hearing. Plaintiff’s
attorney argued plaintiff suffered prejudice as a result of defendant’s failure to produce
documents ordered by the court, and would accordingly need more time to evaluate the
evidence before proceeding with trial.
The judge found defendant was not in compliance with the court’s discovery
order, and this noncompliance was solely the result of the attorney’s misconduct and not
of the client. The judge also found defendant’s attorney relied on misguided advice from
his supervising attorney in failing to produce the documents, and concluded the violation
of the court order was neither willful nor in bad faith. Nevertheless, the judge found the
failure to produce documents in violation of the court order caused undue prejudice to
plaintiff, and on this basis, the judge declared a mistrial resulting in a continuance. The
judge did not report the attorney to the State Bar.
III. ADVICE PROVIDED
Generally, judges have two responsibilities with respect to attorney misconduct:
(1) comply with their statutory obligations regarding conduct that must be reported to the
State Bar, and (2) take appropriate corrective action consistent with the California Code
of Judicial Ethics.
The committee advises that under the hypothetical facts provided here, the judge
would not be required to report the attorney’s misconduct to the State Bar. Only one of
the statutory grounds for mandatory reporting is potentially applicable to these facts —
and that is when a judge imposes sanctions against an attorney under Business and
1 The factual scenario is based on a hypothetical set of circumstances.

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Professions Code section 6086.7, subdivision (a)(3). However, reporting is not required
when the sanctions are for failure to make discovery, as was the case in the hypothetical.
While more stringent action would also be appropriate, the mistrial addressed the
prejudice the misconduct caused; the judge had reason to believe the offending attorney
did not act in bad faith; there was no evidence the offending attorney had a history of
ignoring court orders; and the judge’s ruling was likely to have a deterrent impact on the
offending attorney. Accordingly, the committee advises, given the judge’s factual
findings and the wide discretion permitted in these circumstances, the judge’s decision to
declare a mistrial would constitute appropriate corrective action under the canons of the
California Code of Judicial Ethics.2
IV. AUTHORITIES
A. Applicable Canons
Terminology, “Knowledge:” “‘Knowledge’ . . . mean[s] actual knowledge of the
fact in question. A person’s knowledge may be inferred from circumstances.”
Canon 1: “An independent, impartial, and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing, maintaining, and
enforcing high standards of conduct, and shall personally observe those standards so that
the integrity and independence of the judiciary is preserved.”
Canon 2: “A judge shall avoid impropriety and the appearance of impropriety in
all of the judge’s activities.
Canon 2A: “A judge shall respect and comply with the law and shall act at all
times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary.”
Advisory Committee commentary following canon 2A: “The test for the
appearance of impropriety is whether a person aware of the facts might reasonably
entertain a doubt that the judge would be able to act with integrity, impartiality, and
competence.”
2 All further references to canons, Terminology, and Advisory Committee commentary are to the
California Code of Judicial Ethics.

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Canon 2B(1): “A judge shall not allow family, social, political, or other
relationships to influence the judge’s judicial conduct or judgment, nor shall a judge
convey or permit others to convey the impression that any individual is in a special
position to influence the judge.”
Canon 3B(4): “A judge shall be patient, dignified, and courteous to litigants,
jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity,
and shall require similar conduct of lawyers and of all staff and court personnel under the
judge’s direction and control.”
Canon 3B(5): “A judge shall perform judicial duties without bias or prejudice.”
Canon 3B(7): “A judge shall not initiate, permit, or consider ex parte
communications, that is, any communications to or from the judge outside the presence
of the parties concerning a pending or impending proceeding, and shall make reasonable
efforts to avoid such communications” except in certain circumstances.
Canon 3B(9): “A judge shall not make any public comment about a pending or
impending proceeding in any court, and shall not make any nonpublic comment that
might substantially interfere with a fair trial or hearing.”
Advisory Committee commentary following canon 3B(9): “Although a judge is
permitted to make nonpublic comments about pending or impending cases that will not
substantially interfere with a fair trial or hearing, the judge should be cautious when
making any such comments. There is always a risk that a comment can be misheard,
misinterpreted, or repeated.”
Canon 3D(2): “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.”
Advisory Committee commentary following canon 3D(1) and (2):
“Appropriate corrective action could include direct communication with the judge
or lawyer who has committed the violation, writing about the misconduct in a judicial
decision, or other direct action, such as a confidential referral to a judicial or lawyer
assistance program, or a report of the violation to the presiding judge, appropriate
authority, or other agency or body. . . . [¶]“Appropriate authority” means the authority
with responsibility for initiation of the disciplinary process with respect to a violation to
be reported.”

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B. Statutes, Cases and Other Authorities
Business and Professions Code section 6068
Business and Professions Code section 6086.7
Business and Professions Code section 6086.8
Business and Professions Code section 6101
Business and Professions Code section 6103
Business and Professions Code section 6175.3 & 6175.5
Code of Civil Procedure section 170.1
Family Code section 8620
Penal Code section 1424.5
California Rules of Court, rule 10.609
California Rules of Court, rule 10.1017
Rules of Professional Conduct, rule 3.3
Rules of Professional Conduct, rule 3.4
Rules of Professional Conduct, rule 3.6
Rules of Professional Conduct, rule 3.8
Rules of Professional Conduct, rule 8.4
Amjadi v. Brown (2021) 68 Cal.App.5th 383
Edwards v. State Bar (1990) 52 Cal.3d 28
In re Kelley (1990) 52 Cal.3d 487
Levitz v. The Warlocks (2007) 148 Cal.App.4th 531

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Palmquist v. State Bar (1954) 43 Cal.2d 428
People v. Hamilton (2009) 45 Cal.4th 863
People v. Prieto (2003) 30 Cal.4th 226
California Commission on the Fair Administration of Justice, Report and
Recommendations on Professional Responsibility and Accountability of
Prosecutors and Defense Lawyers (Oct. 18, 2017)
California Judges Association, Judicial Ethics Updates for 1999 and 2001.
California Judges Association, Judicial Ethics Committee Formal Ethics Opinion
No. 74, Judicial Responsibilities When Discovering Attorney Misconduct (Canon
3D(2)) (2018) (hereafter CJA Formal Opinion No. 74)
Center for Judicial Education and Research, California Judges Benchbook: Civil
Proceedings Before Trial (2022), section 10.14 (hereafter California Judges
Benchbook: Civil Proceedings Before Trial)
CJEO Oral Advice Summary 2018-024 (2018), Reporting Misconduct by a
Superior Court Research Attorney in a Pending Matter, California Supreme Court
Committee on Judicial Ethics Opinions
Commission on Judicial Performance, Annual Reports for 1990 and 2015
Rothman, et al., California Judicial Conduct Handbook (4th ed. 2017) sections 2:1,
3:15, 3:16, 3:17, 4:1, 4:11, 5:1 and 5:67 (hereafter Rothman)
Sonya Powell, Intent as an Element of Attorney Misconduct (1993) 18 J. Legal
Prof. 407, 410
V. DISCUSSION
When attorney misconduct occurs, judges have two obligations: (1) follow the
law, and (2) take appropriate corrective action consistent with the California Code of
Judicial Ethics. (Bus. & Prof. Code § 6086.7; canon 3D(2); Advisory Com. commentary

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foll. canon 3D(1) & (2).) 3 However, before taking action, a judge must determine
whether the attorney conduct in question constitutes misconduct. Generally, misconduct
involves a dishonest or deceptive act, or egregious or outrageous behavior. Typically, an
attorney’s inadvertent mistake or incompetence does not qualify as misconduct. (Cal.
Judges Benchbook: Civil Proceedings Before Trial, supra, Examples of Misconduct, §
10.14; People v. Hamilton (2009) 45 Cal.4th 863, 955 [no misconduct for asking a
witness the same question in three different ways, even when objections were sustained
to each question, because the questions were not egregious, deceptive, or reprehensible.])
But intent is not always a prerequisite for a finding of attorney misconduct. For example,
although “commingling and conversion are often the result of bad bookkeeping rather
than intent to take the money,” such action qualifies as attorney misconduct. (Sonya
Powell, Intent as an Element of Attorney Misconduct (1993) 18 J. Legal Prof. 407, 410;
Rules Prof. Conduct, rule 1.15; Palomo v. State Bar (1984) 36 Cal.3d 785, 796 [fiduciary
violations resulting from serious and inexcusable lapses in office procedure may be
deemed willful for disciplinary purposes].) A violation of rule 8.4 of the Rules of
Professional Conduct constitutes misconduct,4 as does contravention of any of an
attorney’s duties under section 6068.5
3 All references to statutes are to the California Business and Professions Code unless
otherwise indicated. Relevant statutes, as well as canons, are set forth in the attached appendix.
4 Rules of Professional Conduct, rule 8.4 states that it is professional misconduct for
attorneys to knowingly violate the Rules of Professional Conduct or the State Bar Act; commit a
crime; engage in fraud or reckless or intentional misrepresentation; engage in conduct prejudicial
to the administration of justice; give the impression they are able to improperly influence a
government agency or official; or knowingly assist or induce a judge to violate their duties. Bates
v. State Bar (1990) 51 Cal.3d 1056 addressed the question of whether a violation of the Rules of
Professional Conduct are “laws of this state” within the meaning of section 6068, subdivision
(a); Bates determined that it did not need to definitively answer the question as it was moot.
(Bates, at pp 1059-1060.) If there is a violation of the Rules of Professional Conduct, there is no
need for duplicative allegations under section 6068. (Bates, at p. 1060.)
5 Section 6068 sets forth an extensive list of an attorney’s professional responsibilities,
including supporting the laws and the Constitution of United States and this state, respecting the

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Even when there is misconduct, corrective action may not always be necessary or
appropriate. (People v. Prieto (2003) 30 Cal.4th 226, 260 [attorney’s brief reference to
an excluded witness in response to an unexpected question did not constitute an
egregious pattern of misconduct, did not infect the trial with unfairness, and it was not
reasonably likely that jurors would apply the remark in an objectionable fashion];
Palmquist v. State Bar (1954) 43 Cal.2d 428, 435-436 [discipline not warranted where
attorney’s technical violation of the rule against client solicitation was done without any
intention of advertising or soliciting business].)
Once a judge concludes an attorney has committed misconduct, the judge must
then determine whether the misconduct must be reported to the State Bar. If reporting is
not mandatory, the canons instruct the judge to take appropriate corrective action.6
A. Statutory Duty To Report Attorney Misconduct
Judges are required to notify the State Bar of any misconduct that constitutes
grounds for disciplinary action by the State Bar. This is dictated by statute – primarily
the Business and Professions Code and the Rules of Professional Conduct. Those
grounds include violation of any of the specified duties of an attorney, including the duty
to (1) support the Constitutions and laws of California and the United States, (2) maintain
respect and candor to the courts and judicial officers, (3) maintain client confidences, (4)
refrain from engaging in conduct involving dishonesty, fraud, deceit, or reckless or
intentional misrepresentation, (5) avoid committing a criminal act that reflects adversely
courts and judicial officers, bringing or defending only actions that are legal and just, being
truthful to the court, and maintaining client confidentiality.
6 This opinion focuses on the overarching factors judges must consider when responding to
attorney misconduct and applies that decision-making process to the specific facts provided by
the hypothetical. CJA Opinion No. 74 provides numerous examples of attorney misconduct and
appropriate judicial response to the same. See also appendix A, post, which includes a non-
exhaustive summary of responses to attorney misconduct under the Code of Judicial Ethics,
Business and Professions Code, and the Rules of Professional Conduct.

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on a lawyer’s trustworthiness or fitness as a lawyer, and (6) avoid conduct that is
prejudicial to the administration of justice. (§ 6068; Rules Prof. Conduct, rules 8.3, 8.4;
In re Kelley (1990) 52 Cal.3d 487, 497 [repeated failure of attorneys to conform their
conduct to the requirements of the criminal law and court orders specially imposed on
them may call into question their integrity of officers of the court and their fitness to
represent clients].)
1. Mandatory Reporting
Section 6086.7 is the primary statute relating to mandatory judicial reporting of
attorney misconduct to the State Bar. This statute identifies five areas where reporting of
attorney misconduct is mandatory. Three are most relevant here. 7
First, a judge must notify the State Bar of attorney misconduct when the judge has
issued a final order of contempt against an attorney that may involve grounds warranting
discipline by the State Bar. (§ 6086.7, subd. (a)(1).) “Grounds warranting discipline”
include violation of various statutes dictating attorney conduct including section 6068,
rule 8.4 of the Rules of Professional Conduct, and the California Rules of Court.
Additionally, there are specific procedural requirements for reporting misconduct
under this section. (Cal. Rules of Court, rules 10.609 & 10.1017; § 6086.7 subd. (a)(1),
(b).) Namely, a judge who issued the final order of contempt must send (or direct the
clerk or court staff to send) a copy of the relevant minutes, the final order, and the
7 Judges must also notify the State Bar of “(4) The imposition of any civil penalty upon an
attorney pursuant to 8620 of the Family Code” (pertaining to the Indian Child Welfare Act), and
“(5) A violation described in paragraph (1) of subdivision (a) of Section 1424.5 of the Penal
Code by a prosecuting attorney, if the court finds that the prosecuting attorney acted in bad faith
and the impact of the violation contributed to a guilty verdict, guilty or nolo contender plea, or, if
identified before conclusion of trial, seriously limited the ability of a defendant to present a
defense.” (Bus. & Prof. Code § 6086.7 subd. (a)(4)-(5).) These grounds for mandatory reporting
are inapplicable here.

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transcript (if one exists) to the State Bar, and must also notify the attorney involved.
(Cal. Rules of Court, rules 10.609 & 10.1017; § 6086.7 subd. (a)(1), (b); appendix A.)
Second, a judge must report attorney misconduct to the State Bar when the judge
modifies or reverses a judgment in a judicial proceeding based in whole or in part on an
attorney’s misconduct, incompetent representation, or willful misrepresentation. (§
6086.7, subd. (a)(2); Amjadi v. Brown (2021) 68 Cal.App.5th 383, 385–387, 389, 390
[judgment reversed for attorney misconduct in accepting a settlement over client’s
objections].) A judge (or judge’s staff) must notify the State Bar in writing, and must
also notify the attorney who committed the misconduct. (Cal. Rules of Court, rules
10.609, 10.1017; § 6086.7, subd. (b).)
Third, a judge must report when the judge imposes judicial sanctions against an
attorney. Sanctions for failure to make discovery and monetary sanctions of less than
$1,000 are excepted from this rule. (§ 6086.7, subd. (a)(3).) 8 Note that the sanctions
must be “against the attorney,” as opposed to sanctions against the party alone. (§
6086.7, subd. (a)(3).) As with all mandatory reporting under section 6086.7, the judge
must notify the State Bar as well as the attorney who is the subject of the notification. (§
6086.7(a)(3); Cal. Rules of Court, rule 10.609.)
Although section 6086.7 is the primary authority for mandatory reporting of
attorney misconduct, judges are also required to report when (1) an attorney is found
liable for damages in a civil action for fraud, misrepresentation, breach of fiduciary duty,
or gross negligence in a professional capacity (§ 6086.8, subd. (a)); (2) an attorney is
convicted of a crime (§ 6101, subd. (c)); or (3) an attorney is found to have violated
obligations regarding provision of financial services by lawyers (§§ 6175.3, 6175.6).
Even where there is no statutory obligation to report to the State Bar, judges
maintain the discretion to do so.
8 It bears noting that there is a corresponding requirement that an attorney self-report to the
State Bar upon the imposition of judicial sanctions, other than those related to discovery or in an
amount less than $1,000. (§ 6068, subd. (o)(3).)

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2. Discretionary Reporting
The Business and Professions Code and the Rules of Professional Conduct
identify several categories of misconduct where notification to the State Bar is not
required, but may nevertheless be appropriate. These actions include but are not limited
to (1) where an attorney willfully violates a court order, an oath, or their duties as an
attorney,9 (2) where an attorney violates the duty of candor to the court;10 (3) where an
attorney violates the duty of fairness to the opposing party or counsel, including by
suppressing evidence;11 (4) when an attorney makes an improper public statement
regarding a case; 12 (5) where a prosecutor or defense counsel violates their special
responsibilities;13 and (6) when an attorney has violated any of the duties under section
6068, and in particular, any violation for which the attorney is required to self-report to
the State Bar. 14 But note, discretionary reporting to the State Bar may be appropriate in
9 Section 6103.
10 Rules of Professional Conduct rule 3.3, which includes making a false statement to the
court, failing to correct a previous false statement, failing to disclose contrary controlling legal
authority, or knowingly offering false evidence.
11 Rules of Professional Conduct, rule 3.4, which includes obstructing, suppressing, or
falsifying evidence and witness tampering.
12 Rules of Professional Conduct, rule 3.6.
13 Rules of Professional Conduct, rule 3.8, which includes lying to the court, appearing in
court under the influence of illegal drugs or alcohol, engaging in unlawful discrimination in a
judicial proceeding, willful Brady violations, knowingly suborning material perjured testimony,
intentionally and unlawfully disclosing victim or witness information, and failing to properly
identify themselves in interviewing a victim or witness; California Commission on the Fair
Administration of Justice, Report and Recommendations on Professional Responsibility and
Accountability of Prosecutors and Defense Lawyers (Oct. 18, 2017).
14 Sections 6068, 6068, subdivision (o); compare, rule 8.3 of the California Rules of
Professional Conduct, which went into effect on August 1, 2023, and requires attorneys to report
to the State Bar when they have credible evidence that another lawyer has committed a crime,
engaged in fraudulent conduct, engaged in reckless or intentional misrepresentation, or
misappropriated funds or property, that raises a substantial question as to that lawyer’s honesty,
trustworthiness, or fitness as a lawyer. Note that the “credible evidence” standard is a lower bar
than the “personal knowledge” required for judicial reporting pursuant to section 6086.7.

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response to any violation of the Rules of Professional Conduct or the State Bar Act
(§ 6000 et seq.) by an attorney, depending on the particular circumstances.
B. Ethical Duty to Take Appropriate Corrective Action
When a judge has personal knowledge15 of attorney misconduct that does not rise
to the level of mandatory reporting, canon 3D(2) obligates the judge to take appropriate
corrective action in response to the misconduct.16 This determination will necessarily be
fact-based and depend on the type and context of the misconduct. However, it bears
noting that just because reporting to the State Bar is not required in any given situation,
reporting is not prohibited. (Rothman, supra, § 5.67, p. 330.) Categories of corrective
action and factors to consider are detailed below.
1. Available Courses of Corrective Action
Judges have wide discretion when deciding which course of corrective action is
appropriate. Examples of corrective action in response to attorney misconduct may
include (1) public or private admonition of the attorney;17 (2) reporting to the attorney’s
superior or employer if done after the conclusion of the case; (3) instruction to the
attorney and/or the jury; (4) addressing the misconduct in a judicial decision; (5)
declaring a mistrial;18 (6) referral to a substance abuse or mental health program, if
appropriate under the circumstances; or (7) a non-mandatory report to the State Bar
(which may be appropriate if the misconduct is particularly egregious, has persisted
15 There is no definition of “personal knowledge” in the Code of Judicial Ethics. The code
defines “knowledge” as “actual knowledge of the fact in question. A person’s knowledge may be
inferred from circumstances.” (Cal. Code of Jud. Ethics, Terminology.) “A judge has personal
knowledge if the judge would be able to testify to the misconduct as a percipient witness.”
(Rothman, supra, § 5.67, citing CJA Formal Opinion No. 74.
16 The “personal knowledge” standard is more stringent than the companion section
regarding a judge’s duty to report a fellow judge, which only requires “reliable information” of
judicial misconduct. (Canon 3D(1).)
17 In this context, a private admonition is a comment made in the presence of all parties and
court staff but outside the presence of jury and public..
18 Code of Civil Procedure section 657, subdivision (1).

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despite prior corrective action, or if the judge concludes that other authorities, such as the
attorney’s employer, will not take any action).19 Overall, the corrective action should be
commensurate with the nature, context, and severity of the misconduct that is at issue.
2. Factors to Consider
Judges should consider the following eight factors when determining appropriate
corrective action in response to attorney misconduct:
First, a judge should consider whether the attorney’s misconduct was willful. As
noted above, intent is generally, though not always, a prerequisite for finding attorney
misconduct. However, the nature of the intent may serve to mitigate or aggravate the
level of misconduct. The more deliberate the misconduct, the more severe the corrective
action should be.
Second, a judge should weigh the egregiousness of the misconduct, and the harm it
causes. The worse the misconduct and the attendant injury, the more severe the response
should be. However, serious misconduct without measurable harm could dictate a more
forgiving response.
Third, a judge should determine whether the attorney misconduct caused prejudice
to the opposing party. If so, more serious corrective action is warranted.
Fourth, a judge should attempt to ascertain whether the attorney misconduct was
an isolated incident or part of an ongoing problem. Where attorney misconduct is a
standalone occurrence, as opposed to part of a pattern or practice of bad behavior, a judge
may entertain lesser corrective action. On the other hand, when the conduct is part of an
ongoing pattern, such as a governmental attorney repeatedly appearing late or engaging
in improper conduct, and a public comment directly to the attorney on the record has not
resolved the problem, it may be appropriate to raise the issue with that attorney’s
supervisor if it can be done without commenting on a pending case in a manner that
19 Rothman, supra, supplement to section 5.67, citing CJA Formal Opinion No. 74, supra,
p. 5.

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would interfere with a fair trial or hearing and without engaging in an ex parte
communication.
Fifth, a judge should evaluate the likelihood that any other body or authority (e.g.,
the attorney’s employer) will step in to address the attorney misconduct. If other
intervention is unlikely, a judge should contemplate more direct corrective action.
Sixth, a judge may consider the availability of less drastic means of corrective
action.
Seventh, a judge may examine whether there has been prior corrective action in
response to the attorney’s misconduct. Where a judge has already taken lesser steps in
attempts to address attorney misconduct, and the misconduct persists, the judge should
then consider more serious corrective action, including a report to the State Bar.
Eighth, a judge should consider the timing of the appropriate corrective action to
avoid commenting on a pending proceeding or engaging in conduct that may be
considered an ex parte communication or that might substantially interfere with a fair
trial or hearing. (CJEO Formal Opinion 2021-018 (2021) Providing Feedback on
Attorney Courtroom Performance.)
And ninth, in determining appropriate corrective action, a judge may consider
whether the contemplated corrective action will deter future misconduct by the attorney,
as well as whether the corrective action will deter such misconduct by other attorneys
moving forward. The end goal of corrective action is to deter further attorney
misconduct in the future.
3. Additional Considerations After Determining Appropriate Corrective
Action
Once a judge has determined the course of corrective action appropriate to the
facts and circumstances, the judge should consider five additional factors. First, a judge
should ensure that any response is issued in a dignified manner, whether orally or in
writing. Second, the corrective action should be carried out in open court and not ex
parte. Third, when litigants are present, care should be taken to avoid interfering with the

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attorney client relationship. Fourth, to avoid embroilment, corrective action should not
be personal or retaliatory in nature. Fifth, corrective action should not be undertaken to
gain favor with opposing counsel, colleagues, or the public at large.
For future reference, the committee has provided a non-exhaustive table of types
of attorney misconduct and whether such misconduct requires notification of the State
Bar. (Appendix A.) The appendix includes procedural requirements depending on the
nature of the misconduct at issue. Judges are cautioned to consider the gravity of a State
Bar report, both in terms of the damaging effect on an attorney’s professional reputation,
as well as the prejudicial effect such a report may have in any ongoing case or trial. In
cases where a judge determines reporting to the State Bar is appropriate, they are
encouraged to use the Discipline Referral Form provided by the Office of Chief Trial
Counsel for the State Bar of California.
C. Application to the Hypothetical Facts
The attorney here engaged in misconduct by failing to comply with the judge’s
discovery order. The judge found the attorney’s misconduct caused prejudice to the
opposing party and issued sanctions in the form of a mistrial.
1. Was the Judge Required to Report the Attorney Misconduct to the
State Bar?
Because the requesting judge did not issue a final order of contempt against the
attorney, mandatory reporting to the State Bar would not be required under section
6086.7, subdivision (a)(1).
Although the judge declared a mistrial, the judge did not modify or reverse a
judgment based in whole or in part on the attorney’s “misconduct, incompetent
representation, or willful misrepresentation….” (§ 6086.7, subd. (a)(2).) Accordingly,
mandatory reporting would not be triggered under section 6086.7, subdivision (a)(2).
Sanctions (here a mistrial) could trigger mandatory reporting to the State Bar
under section 6086.7, subdivision (a)(3). As an initial consideration, for this section to

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apply, the sanctions must be “against the attorney.” Here, the judge made a finding that
noncompliance with the court’s discovery order was solely the result of the attorney’s
misconduct, and not the client’s. Thus, the sanctions would qualify as sanctions against
the attorney, as contemplated by the statute. (Levitz v. The Warlocks (2007) 148
Cal.App.4th 531, 535-536, citing Cal. Rules of Court, former rule 227(b), now rule 2.30
(b) [Sanctions for violating pretrial rules must be imposed only on the attorney if the
violation is the attorney’s responsibility. Such sanctions may not adversely affect the
party’s case.]) The sanctions here apparently did not adversely affect the party’s case,
given that the mistrial resulted only in a continuance.
Nevertheless, sanctions for “failure to make discovery” and monetary sanctions of
less than $1,000 are excepted from the mandatory reporting requirements under section
6086.7. Here, the judge issued sanctions – namely, a mistrial – based on the attorney’s
actions which violated the court’s order. But the relevant court order arose out of a
discovery motion.
The committee has not located any authority from the Courts of Appeal or the
California Supreme Court addressing this issue. Pending direction, it is the committee’s
view that ordering a mistrial as sanctions for violation of an underlying discovery order
falls within the purview of “sanctions for failure to make discovery.” Accordingly, the
committee concludes the inquiring judge did not have a mandatory duty to report the
attorney’s misconduct to the State Bar under section 6086.7, subdivision (a)(3).
This opinion does not address other statutory grounds for mandatory judicial
reporting of attorney misconduct to the State Bar. Refer to the attached appendix for
additional information.
Most of the enumerated discretionary grounds for reporting attorney misconduct to
the State Bar discussed above are similarly inapplicable to the facts at issue here.
Following an evidentiary hearing, the court concluded the attorney did not willfully or in
bad faith mislead the court or opposing party, perpetrate fraud upon the court, appear
intoxicated in court, engage in unlawful discrimination, suborn perjured testimony, or the

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like. (Rules Prof. Conduct, rules 3.3, 3.6, 3.8, 8.4; § 6068.) Although rule 3.4,
subdivision (b) of the Rules of Professional Conduct prohibits a lawyer from suppressing
any evidence that the lawyer or client has a legal obligation to produce, the court found
that the attorney did not withhold the documents willfully or in bad faith. Thus, the case
for reporting the misconduct to the State Bar is less compelling.
In the hypothetical, the attorney violated a court order, which could constitute a
ground for discretionary reporting to the State Bar under section 6103 regarding the
willful disobedience or violation of a court order. “An attorney’s misconduct does not
need to be in bad faith to be willful; rather, all that is required is ‘a general purpose or
willingness to commit the act or permit the omission.’” (Edwards v. State Bar (1990) 52
Cal.3d 28, 37, citing Durban v. State Bar (1979) 23 Cal.3d 461, 567.) As noted above,
the judge found that the attorney’s conduct in violating the court order was neither willful
nor in bad faith. Accordingly, the committee is of the view that the attorney’s misconduct
falls outside the reach of section 6103.
As such, the committee believes mandatory reporting was not required.
2. Did the Judge Take Appropriate Corrective Action?
Given the hypothetical judge’s factual findings and the wide discretion permitted
in these circumstances, the decision to declare a mistrial would constitute appropriate
corrective action. Although other, more severe action would also have been appropriate,
the mistrial addressed the prejudice the misconduct caused; the judge had reason to
believe the offending attorney did not act in bad faith; there was no evidence the
offending attorney had a history of ignoring court orders; and the judge’s ruling was
likely to have a deterrent impact on the offending attorney and others.
VI. CONCLUSION
Judges have two obligations with respect to attorney misconduct: (1) follow the
law, and (2) take appropriate corrective action. This opinion has provided general
guidance as to factors a judge should consider when complying with these obligations.

18
Applying these factors to the hypothetical fact pattern here, the committee believes (1)
the judge would not be required to report the attorney’s misconduct to the State Bar, and
(2) given the judge’s factual findings and permissive discretion, the judge’s decision to
declare a mistrial would constitute appropriate corrective action under the canons.

This opinion is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rule 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions
expressed in this opinion are those of the committee and do not necessarily reflect the
views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule
9.80(b); CJEO rule 1(a)).)

A-1
Appendix A to CJEO Formal Opinion 2023-025
Please note: This appendix is current as of the publication date (February 22, 2024). It will not be revised if/when there is new authority.
Authority Attorney Misconduct Mandatory
Report?
Reporting Requirements
Canon 3D(2) When judge has personal
knowledge that a lawyer has
committed misconduct, or has
violated any provision of the
Rules of Professional Conduct.
No. The judge must take “appropriate corrective action.”
Bus. & Prof. Code
§ 6086.7, generally.
Yes. The senior justice issuing the order or the justice or judge
issuing the order or authoring the opinion triggering the
reporting requirement under Business and Professions Code
section 6086.7, subdivision (a) is responsible for notifying the
State Bar. The justice or judge may direct the Clerk or court
staff to notify the State Bar. The notice must include the
attorney’s full name and State Bar number, if known, and a
copy of the final order triggering the report and transcript, if
available. The person who makes the notification must also
inform the attorney who is the subject of the notification that the
matter has been referred to the State Bar. (Cal. Rules of Court,
rules 10.609, 10.1017; Bus. & Prof. Code § 6086.7, subd. (a)(1),
(b).) Use the State Bar’s Discipline Referral Form.
Bus. & Prof. Code
§ 6086.7, subd. (a)(1)
A final order of contempt against
an attorney on grounds that may
warrant discipline under Bus. &
Prof. Code, Div. 3, Chapter 4.
Attorneys.
Yes. Court must send a copy of relevant minutes, final order, and
transcript (if one exists) to the State Bar. (Cal. Rules of Court
rule 10.609, and Advisory Comm. Comment on same.) Court
must also notify the attorney involved. (Cal. Rules of Court,
rules 10.609, 10.1017; Bus. & Prof. Code § 6086.7, subd. (a)(1),
(b).) No statutory time limit, but should be done “on a timely
basis.”

A-2
Bus. & Prof. Code
§ 6086.7, subd. (a)(2)
Modification or reversal of a
judgment based in whole or in
part on attorney misconduct,
incompetent representation, or
willful misrepresentation.
Yes. Court must notify the State Bar in writing in accordance with
California Rules of Court, rules 10.609, 10.1017. Court must
also notify the attorney involved. (Cal. Rules of Court, rules
10.609, 10.1017, and Business and Professions Code section
6086.7, subd. (b).) No statutory time limit, but should be done
“on a timely basis.”
Bus. & Prof. Code
§ 6086.7, subd. (a)(3)
Judicial sanctions against an
attorney (except sanctions for
failure to make discovery or
monetary sanctions in an amount
less than $1,000).
Yes. Court must notify the State Bar in writing in accordance with
California Rules of Court, rules 10.609, 10.1017. Court must
also notify the attorney involved per Business and Professions
Code section 6086.7, subd. (b). No statutory time limit, but
should be done “on a timely basis.”
Bus. & Prof. Code
§ 6086.7, subd. (a)(4)
Civil penalty upon an attorney
under Fam. Code § 8620
regarding adoption of children
with Indian tribal affiliations.
Yes. Court must notify the State Bar in writing in accordance with
California Rules of Court, rules 10.609, 10.1017. Court must
also notify the attorney involved per Business and Professions
Code section 6086.7(b). No statutory time limit, but should be
done “on a timely basis.”
Bus. & Prof. Code
§ 6086.7, subd. (a)(5)
Finding of bad faith by a
prosecuting attorney for
withholding exculpatory
evidence.
Yes. Court must notify the State Bar in writing in accordance with
California Rules of Court, rules 10.609, 10.1017. Court must
also notify the attorney involved per Business and Professions
Code section 6086.7, subd. (b). No statutory time limit, but
should be done “on a timely basis.”
Bus. & Prof. Code,
§ 6086.8, subd. (a)
Judgment for damages against an
attorney in a civil action for
fraud, misrepresentation, breach
of fiduciary duty, or gross
negligence in a professional
capacity.
Yes Court must notify State Bar in writing within 20 days of
judgment.

A-3
Bus. & Prof. Code
§ 6068
Violation of any of the duties of
an attorney as set forth in section
6068 of the Bus. & Prof. Code.
No. Judges may use their discretion as to whether to report to the
State Bar.
Bus. & Prof. Code
§ 6101
Conviction of a felony or
misdemeanor involving moral
turpitude. (A guilty plea, guilty
verdict, acceptance of nolo
contendere plea, or conviction
after a plea of nolo contendre is
deemed to be a conviction.)
Yes The clerk must transmit a certified copy of the record of
conviction to the Office of Chief Trial Counsel within 48 hours
after conviction.
Bus. & Prof. Code
§ 6103
Willful disobedience or violation
of a court order.
No. Judges may use their discretion as to whether to report to the
State Bar.
Bus. & Prof. Code
§ 6106
Committing any act involving
moral turpitude, dishonesty, or
corruption, whether or not the
act was committed in their
professional capacity as an
attorney.
No. Judges may use their discretion as to whether to report to the
State Bar.
Bus. & Prof. Code
§§ 6175.3, 6175.5,
6175.6
Violation of disclosure
requirements by attorney acting
as fiduciary selling financial
products to elder or dependent
adult.
Yes The court must report the name, address, and State Bar number
of any attorney found to be in violation of Bus. & Prof. Code
Chapter 4, Article 10.5 – Provision of Financial Services by
Lawyers – to the State Bar and any other appropriate
professional licensing agencies for review and possible
disciplinary action.

A-4
Cal. Rules of Prof.
Conduct, rule 3.3
Violation of duty of candor to
the court, including misleading a
judge by a false statement of
fact or law, or offering evidence
that the lawyer knows to be false.
No. Judges may use their discretion as to whether to report to the
State Bar.
Cal. Rules of Prof.
Conduct, rule 3.4
Violation of duty of fairness to
opposing party and counsel,
including by suppressing
evidence that the attorney or
client has a legal obligation to
produce, or counseling or
assisting a witness to testify
falsely.
No. Judges may use their discretion as to whether to report to the
State Bar.
Cal. Rules of Prof.
Conduct, rule 3.6
Making improper out of court
statements about pending
proceedings.
No. Judges may use their discretion as to whether to report to the
State Bar.
Cal. Rules of Prof.
Conduct, rule 3.8
Violation of any of the special
responsibilities of a prosecutor,
including willful
misrepresentation to a court,
appearing under the influence in
court, engaging in unlawful
discrimination, willfully
bringing charges without
probable cause, Brady violations,
and knowingly presenting
perjured testimony.
No. Judges may use their discretion as to whether to report to the
State Bar.

A-5
Cal. Rules of Prof.
Conduct, rule 8.4
Committing professional
misconduct by “(a) violating the
Rules of Professional Conduct or
the State Bar Act (Bus. & Prof.
Code sections 6000, et seq.).” (b)
committing a crime that reflects
poorly on the attorney’s honesty,
trustworthiness, or fitness as a
lawyer in other respects; (c)
engaging in dishonest,
fraudulent, or deceitful conduct,
or reckless or intentional
misrepresentation; (d) engaging
in conduct prejudicial to the
administration of justice; (e)
giving the impression that the
attorney has the ability to
improperly influence a
government agency or official; or
(f) knowingly assisting,
soliciting, or inducing a judge to
violate the applicable rules of
judicial ethics and conduct.
No. Judges may use their discretion as to whether to report to the
State Bar.
Notes:
A violation of rule 8.4, subd. (a) can occur even when a lawyer
is acting in pro per, or not practicing law or acting in a
professional capacity. Cal. Rules of Prof. Cond., rule 8.4,
Editor’s Comment [1].
An attorney may be disciplined for criminal acts as set forth in
Business and Professions Code sections 6101 et seq., or if the
criminal act constitutes “other misconduct warranting
discipline” which has been defined as misconduct that is not
expressly prohibited by statute or rule and/or that does not
amount to moral turpitude, but nevertheless warrants
disciplinary action. Cal. Rules of Prof. Cond., rule 8.4, Editor’s
Comment [3] citing In re Kelley (1990) 52 Cal.3d 487.
An attorney may be disciplined under Business and Professions
Code section 6106 for acts involving moral turpitude,
dishonesty, or corruption, whether intentional, reckless, or
grossly negligent. Cal. Rules of Prof. Cond., rule 8.4, Editor’s
Comment [4].