'Controlling jurisdiction' and the duty to disclose adverse authority: Florida's district courts of appeal reign supreme on matters of first impression.

• Jurisdiction: United States
• Date: 01 December 2011
• Author: Rizzardi, Keith W.

The duty of candor to the tribunal, a core value of the Rules Regulating The Florida Bar, requires lawyers to disclose to the tribunal adverse precedent from a "controlling jurisdiction." (1) Many Florida lawyers, however, might be surprised to learn that when it comes to the opinions of Florida's district courts of appeal, a court's physical jurisdictional boundaries may be irrelevant to an opinion's precedential weight. In Florida, until a conflict arises among the district courts (or until the Supreme Court rules) on any matter of first impression, the opinion of any one district court is binding and controlling precedent, statewide, on all other lower-level state tribunals.

Ethics, Professionalism, and the Duty to Disclose Adverse Precedent

For a lawyer, the discovery of adverse caselaw from other jurisdictions presents a professional challenge. As one judge and scholar recently noted, even when there may be reasons to distinguish the case, there remain practical reasons to disclose the adverse authority:

Principles of professionalism would suggest the propriety of disclosing decisions of other coordinate courts that are on point, as well.... [The court] is almost certain to find those decisions anyway, and failure to disclose and address them might well cause the court to conclude that the attorney cannot be trusted. (2)

Furthermore, the aspiration of professionalism may, in fact, equate with ethical duties when it comes to disclosing a district court opinion in one of Florida's circuit or county court proceedings.

In Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992), the Florida Supreme Court explained the hierarchy of authority within the Florida court system as follows:

The [d]istrict [c]ourts of [a]ppeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts--[d]istrict [c]ourts of [a]ppeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between [d]istrict [c]ourts of [a]ppeal, a sister district's opinion is merely persuasive. (3)

In other words, pursuant to this principle (the Pardo principle) a trial court must follow any decision of first impression by any one of Florida's five district courts of appeal. (4) The Florida Supreme Court reaffirmed this reasoning in Brannon v. State, 850 So. 2d 452, 458 n.4 (Fla. 2003), stating: "If there is no controlling decision by this Court or the district court having jurisdiction over the trial court on a point of law, a decision by another district court is binding." (5)

From an ethical standpoint, this could mean that, in some circumstances, a lawyer appearing before the trial courts of Florida must cite cases from other district courts, because Rule 4-3.3(a)(3) of the Rules Regulating The Florida Bar states as follows: "(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly: ... (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...." In other words, given the Pardo principle and its holding that Florida's trial courts are bound to follow "the only case on point on a district level," the rulings of district courts other than the one in which the trial court is located are controlling. Thus, depending upon how one interprets the next term "jurisdiction" in the ethical mandate to "disclose to the tribunal legal authority in the controlling jurisdiction," Florida's duty to disclose adverse authority on appeal may apply to authority from the Florida Supreme Court, authority from the district court to which the lawyer would appeal, and even authority from other district courts (if the only case on point is from a district other than the one in which the trial court is located).

Although no case has specifically held that a Florida lawyer has a duty to cite caselaw from other district courts, cases discussing Rule 43.3(a)(3) have interpreted the rule in a way that favors disclosure. Most notably, in Boca Burger, Inc. v. Forum, 912 So. 2d 561, 572 (Fla. 2005), the Supreme Court emphasized that "the rules already require counsel to concede error on appeal when appropriate," and the opinion included two substantial footnotes listing dozens of cases where the State of Florida conceded error or where an appellee conceded error to a district court. Reiterating the need for attorney candor, the Florida Supreme Court in Boca Burger also quoted the past lamentations of another judge:

Too many members of the Bar practice with complete ignorance of or disdain for the basic principle that a lawyer's duty to his calling and to the administration of justice far outweighs--and must outweigh--even his obligation to his client, and, surely what we suspect really motivates many such inappropriate actions, his interest in his personal aggrandizement. (6)

In other words, lawyers should be wary of...