III. Disclosing Directly Adverse Authority

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

III. Disclosing Directly Adverse Authority

As noted above, lawyers are officers of the court.²¹⁰ One of a lawyer's basic duties as an officer of the court is to call applicable legal authority to the court's attention,²¹¹ including legal authority in the controlling jurisdiction that is directly adverse to the claim or cause of action being pressed.²¹² This duty is enforced under Model Rule 3.3(a)(2), which provides that a lawyer shall 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."²¹³ Before the 2002 amendments to the Model Rules, this duty resided in Model Rule 3.3(a)(3). Although critics of the duty to disclose directly adverse legal authority in the controlling jurisdiction argue that it requires lawyers to act contrary to their clients' interests, it is in no one's interest to permit lawyers to potentially facilitate courts' erroneous determination or interpretation of the law by knowingly concealing important authority. Moreover, compliance with Rule 3.3(a)(2) only requires a lawyer to reveal authority within its scope; it does not require the lawyer to advance or develop an opponent's related arguments.²¹⁴

As a practical matter, Model Rule 3.3(a)(2) should seldom have to be invoked. After all, credibility with courts is essential for advocates. As with any act of perceived dishonesty by a lawyer, failing to reveal adverse authority destroys judicial trust. It is also possible that a lawyer's failure to reveal directly adverse authority will enhance that authority in the court's eyes, for if it was inapposite or erroneously decided, the lawyer surely would have revealed it. Accordingly, good advocates reveal directly adverse authority in the jurisdiction, accompanied by arguments criticizing or distinguishing it. This diminishes the opponent's argument on the point, builds credibility with the court, and may even favorably influence the court's decision.²¹⁵

"Legal authority" as that term is used in Model Rule 3.3(a)(2) is not limited to case law; it also describes or refers to administrative rulings, codes, ordinances, regulations, rules, and statutes.²¹⁶ On the other hand, secondary sources, such as law review and bar journal articles, treatises, texts, legal encyclopedias, hornbooks, and the like do not qualify as legal authority for Rule 3.3 disclosure purposes. The "controlling jurisdiction" typically means the forum state in state court cases, and the same judicial district or appellate circuit in federal cases.²¹⁷ Applicable Supreme Court decisions are always deemed to be from a controlling jurisdiction.²¹⁸ This view is consistent with accepted notions of assessing legal precedent.

Lawyers' duty to reveal directly adverse case law is not limited to appellate decisions.²¹⁹ Lawyers may be required to cite trial court decisions.²²⁰ This obligation is more likely to be imposed in connection with federal district court decisions, which are commonly published and which are widely regarded as persuasive authority even though they lack precedential value. State trial court opinions that are deemed to be non-binding in a jurisdiction should not require disclosure.²²¹ Lawyers may be required to disclose lower court opinions even if they are on appeal, if the applicable law provides that the decision has precedential value pending appeal.²²² Lawyers also may be required to disclose courts' unpublished decisions,²²³ although they need not do so in jurisdictions in which such opinions are non-binding or non-precedential,²²⁴ nor must they disclose decisions of any sort to which citation is prohibited.²²⁵ For example, some states prohibit citation to intermediate appellate court decisions that are not approved for official publication, such that a lawyer would have no duty to cite one of those decisions that was directly adverse to a client's position. If lawyers do cite unpublished opinions in a jurisdiction that permits the practice, however, they must disclose directly adverse unpublished decisions about which they know to satisfy their duty of candor.²²⁶

Lawyers occasionally argue that a case is not directly adverse because it is stale—i.e., it was decided long before the dispute at hand. That is not so. Intervening developments may call into question the vitality of old cases and thus provide a basis for distinguishing them. Changes in legal doctrine or thought may support an argument that a court ought to overrule an old case. The mere passage of time, however, does not transform directly adverse authority into something else and thus excuse its disclosure to the court.²²⁷

Of course, a lawyer must reveal directly adverse authority in the controlling jurisdiction only if it is not disclosed by opposing counsel.²²⁸ But a lawyer who knows of such authority may not omit the authority from her opening brief or some other initial pleading or document in the hope that an opponent will thereafter find and cite it.²²⁹ A lawyer has "a duty to refrain from affirmatively misleading [a] court as to the state of the law."²³⁰ A lawyer's breach of this duty is not cured by an adversary's subsequent citation of the subject authority. If a lawyer omits directly adverse authority in the controlling jurisdiction from an initial pleading or brief and her opponent does not assert the authority in a subsequent brief or memorandum despite having the opportunity to do so, the lawyer must call the omitted authority to the tribunal's attention before the case is submitted for decision.²³¹

Lawyers are not required to disclose all adverse authority in the controlling jurisdiction. Rather, lawyers' duty is more limited. A lawyer is required to disclose only directly adverse authority in the jurisdiction.²³² In some cases, direct adversity will be obvious. As a general rule, authority should be considered directly adverse if the court would reasonably view it as important or reasonably feel as though the lawyer misled it by advancing a position contrary to the authority.²³³ Either way, authority may be directly adverse even though the lawyer reasonably believes it to be factually distinguishable or erroneously decided, or understandably thinks that the court will otherwise determine that it does not govern the current case.²³⁴Tyler v. State²³⁵ is an illustrative case.

David Tyler was convicted of a felony for driving while intoxicated. The issue on appeal was the treatment of two prior DWI offenses, which affected Tyler's status as a repeat offender and, thus, whether he should have been convicted of a felony rather than a misdemeanor. Tyler's attorney, Eugene Cyrus, did not in his briefing reveal as being directly adverse an Alaska Supreme Court case, McGhee v. State,²³⁶ which addressed the exact same issue in a slightly different setting. The state's attorney did not cite McGhee as directly adverse authority either; the appellate court located it through its own research. Cyrus could not claim, however, that he was unaware of McGhee, for it was he who represented McGhee in the supreme court.²³⁷

Cyrus explained that he had not cited McGhee because he believed that it did not control the outcome of Tyler's case. He contended that McGhee was factually distinguishable, and that the court was wrong to rely on McGhee to find against Tyler because of the different contexts in which the cases arose. Cyrus pointed to a trial court order in another case in which the judge had agreed that McGhee did not control the disposition of a case like Tyler's. Thus, because "reasonable attorneys and judges could disagree on . . . whether McGhee was controlling authority in Tyler's case," then-Rule 3.3(a)(3) did not require him to reveal it.²³⁸ In short, Cyrus argued that he was required to reveal only "controlling authority."²³⁹

The court rejected Cyrus's arguments, correctly explaining that a lawyer must disclose directly adverse authority in the controlling jurisdiction, not controlling author-ity.²⁴⁰ Because McGhee was decided by the Alaska Supreme Court, it clearly constituted authority in the controlling jurisdiction. The question thus became whether McGhee could be considered directly adverse. The court determined that it could, stating:

[A] court

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