II. Appellate Lawyers and the Truth

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. Appellate Lawyers and the Truth

"Truth is the cornerstone of the judicial system; a license to practice law requires allegiance and fidelity to truth."¹ For appellate lawyers, allegiance and fidelity to truth can be made more difficult when the core premise of their mission for their client may simply be untrue—the lower court decision that they are seeking to have reversed as erroneous may clearly have been correct. Or, when representing an appellee, an appellate lawyer may desperately wish to cling to a trial court victory that should have properly gone the other way. Unhappily for appellate lawyers, their duty of "allegiance and fidelity to truth" may, on the right facts, compel them to confess error below, notwithstanding their concurrent duty to competently advocate their clients' claims.² This explains, for example, the general requirement that appellate lawyers call to a court's attention any uncertainties about the existence of appellate jurisdiction.³

This broad and overriding duty to be truthful, often described as a duty of candor, is critical. As the court in United States v. Shaffer Equipment Co.⁴ explained:

Our adversary system for the resolution of disputes rests on the unshakable foundation that truth is the object of the system's process which is designed for the purpose of dispensing justice. However, because no one has an exclusive insight into truth, the process depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions—all directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition. Even the slightest accommodation of deceit or lack of candor in any material respect quickly erodes the validity of the process. As soon as the process falters in that respect, the people are then justified in abandoning support for the system in favor of one where honesty is preeminent.⁵

Indeed, courts can and do treat this duty of candor owed by lawyers as officers of the court as being both broader than that imposed by any ethics rules and a duty that ethics rules do not supplant.⁶ This broader, general duty of candor derives from lawyers' larger duty to protect the integrity of the judicial process and can provide a basis for sanctioning a lawyer even if the lawyer's dishonesty arguably does not amount to a violation of pertinent ethics rules, such as Model Rule 3.3,⁷ which generally establishes lawyers' duty of candor to tribunals.⁸ In addition to Model Rule 3.3, acts of dishonesty in handling appeals can result in a determination that a lawyer violated Model Rule 8.4(c), which prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation," or Model Rule 8.4(d), which prohibits conduct that is "prejudicial to the administration of justice," or both.⁹

Model Rule 3.3, straightforwardly entitled "Candor Toward the Tribunal," contains two provisions of vital importance to lawyers handling appeals. The first is the prohibition in Model Rule 3.3(a)(1) against knowingly making "a false statement of fact or law to a tribunal."¹⁰ The second is the prohibition in Model Rule 3.3(a)(2) against knowingly failing "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."¹¹ Because Model Rule 3.3(c) explicitly provides that a lawyer's duties under Model Rule 3.3 trump any obligation of client confiden-tiality,¹² these two candor-based duties under the ethics rules can require an appellate lawyer to disclose information despite the fact that it is confidential client information. Working through the duty to disclose adverse authority and its impact on marshaling arguments for the client can be particularly challenging for appellate lawyers.

A. The Duty to Disclose Adverse Authority

One of an attorney's "basic duties" as an officer of the court is to call applicable legal authority to the court's attention.¹³ Ethics rules require a lawyer to not knowingly "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."¹⁴ Phrased positively, a lawyer is ethically obligated to disclose the described authority. "Legal authority," for purposes of this rule, is not limited merely to case law and statutes, but extends to administrative rulings, ordinances, rules, and regulations.¹⁵Sources commonly described by lawyers as "secondary authorities," such as law review and bar journal articles, treatises, legal encyclopedias, hornbooks and similar sources, however, do not qualify as legal authority for purposes of this rule.

Model Rule 3.3(a)(2) speaks in terms of disclosing legal authority in the "controlling jurisdiction," which means that this duty to reveal directly adverse case law is not limited to appellate decisions, but can extend even to trial court decisions.¹⁶ The "controlling jurisdiction," for purposes of this rule, typically means the forum state in cases pending before state courts and the same judicial district or appellate circuit for federal court cases.¹⁷ Of course, whether you are in state court or federal court, U.S. Supreme Court decisions are always considered to be from a controlling jurisdiction.¹⁸

One interesting phenomenon is how prone lawyers can be to simply misconstrue the ethics requirement to disclose directly adverse authority to require only the disclosure of controlling authority.¹⁹ From time to time, attorneys try to mount creative arguments about whether a case is from a controlling jurisdiction or not, but more often than not those arguments merely involve a variation on the mistaken concept that the test is whether the case amounts to controlling authority. Schutts v. Bentley Nevada Corp.²⁰ is one such instance. In Schutts, the plaintiff's lawyer was taken to task by a Nevada district court for failing to cite two Ninth Circuit decisions that were directly adverse to the plaintiff's position in the litigation. The lawyer sought to justify his omission on the basis that there was a conflicting decision in the Second Circuit and that one of the Ninth Circuit cases was "not the law of the land" until the Supreme Court acted to reconcile the Ninth Circuit and Second Circuit decisions. The Nevada district court labeled the lawyer's argument as "truly bizarre"²¹ and dispatched it fairly simply. Because the cases were decisions by the federal court of appeals encompassing Nevada, "they [were] the law, here, in this court. End of story."²²

What if there is no authority on point in the controlling jurisdiction, but there is directly adverse authority in another jurisdiction? Must a lawyer who knows of such authority cite it even though it is not in the controlling jurisdiction? Model Rule 3.3(a)(2) itself does not require disclosure in this situation, and disclosure of such authority could very well undermine an advocate's duty to competently represent her client. If, on the other hand, a lawyer cites authority from outside the controlling jurisdiction because there is no authority on point in the jurisdiction, some courts reason that the lawyer then becomes required to also reveal directly adverse authority from outside the controlling jurisdiction.²³ Courts advocating such an obligation posit that Rule 3.3(a)(2) only establishes a minimum standard of conduct; a lawyer's general duty of candor can require more.²⁴ Moreover, a lawyer's selective citation of authorities from other jurisdictions arguably represents an attempt to deceive the court,²⁵ thus implicating Rules 8.4(c) and (d).²⁶ One could further argue, perhaps analogizing to tort law, that a lawyer may be held to assume a duty to reveal directly adverse authority from outside the controlling jurisdiction if she cites favorable authority from outside the jurisdiction.²⁷

It may be possible for a lawyer to assume a duty to reveal directly adverse authority from outside the controlling jurisdiction, but courts should recognize such a duty sparingly. Even a lawyer's rigorous duty of candor as an officer of the court must have reasonable limits to accommodate the lawyer's duties to her client as an advocate. For example, it is one thing for a court to take a lawyer to task for cherry-picking a case from a non-controlling jurisdiction and ignoring another case in the same non-controlling jurisdiction that is directly adverse to the lawyer's client's position. It is another, however, for a court to hold that because a lawyer cited a case from non-controlling jurisdiction A that adopted her client's argument, it would be a breach of the lawyer's duty of candor to not disclose the existence of a case from non-controlling jurisdiction B that rejected the client's argument. Further, in the rare instance when such a duty is imposed, it should not be premised in any respect upon Model Rule 3.3(a)(2), for the language of that rule in no way supports it. Depending on the facts, Model Rules 8.4(c) and (d) are better authorities on which to claim a premise for such a duty.²⁸

Under Model Rule 3.3(a)(2), the lawyer's ethical duty to reveal authority is not triggered unless the authority is known to be "directly adverse" to her client's position.²⁹ Nevertheless, lawyers who split hairs over whether adverse authority is something they know to be "directly" adverse dance on a razor's edge, inasmuch as that determination is almost always subject to objective evaluation rather than pivoting on the subjective view of the attorney involved. Lawyers should recognize that, for professional responsibility purposes, authority may be "directly adverse" even though the lawyer reasonably believes that the authority is factually distinguishable or that the court will otherwise be led to determine that the authority is inapposite.³⁰

An example of a type of argument doomed to fail involves...