BY MARCY GLENN
A lawyer’s duty of candor and goal of persuasion are mutually beneficial and interrelated. This article explores how these objectives maximize the effectiveness of representation.
In 1860, botanist Asa Gray wrote to Charles Darwin: “Your candor is worth everything to your cause.”1 They were corresponding about Darwin’s recently published book, On the Origin of Species, but over 150 years later, Gray’s comment applies with equal force to the practice of law. Lawyers must be “scrupulously honest at all times, for honesty is ‘basic’ to the practice of law.”2This article reviews the lawyer’s duties of candor in appeals and the interrelated goal of persuading the tribunal.3Further, it recommends that lawyers capitalize on the opportunities that “scrupulous[ ] honest[y]” provides—to establish trust with the appellate court, to confront directly problematic facts and law, and ultimately, to more effectively persuade the tribunal.
The Duty of Candor to the Court
Under Colorado Rule of Professional Conduct (Colo. RPC) 3.3, a lawyer has a duty of “Candor Toward the Tribunal.” Rule 3.3(a) provides that a lawyer “shall not knowingly” (1) “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer,” or (2) “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.”4 More generally, under Rule 8.4(c), it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” These rules have a variety of applications in the appellate process.
Do Not Misstate the Facts or Law
Rule 3.3(a)(1) prohibits knowingly made “false statement[s],” but the spirit of the rule arguably extends beyond falsehoods to include misleading statements and omissions.5 In addition, “dishonesty” as used in Rule 8.4(c) “encompasses conduct evincing a lack of honesty, probity or integrity in principle [and] a lack of fairness and straightforwardness. . . .”6 A statement is material if it “had the potential to mislead” the court.7
A lawyer who knowingly misrepresents the trial record in appellate filings or at oral argument “make[s] a false statement of fact,” and if the misstatement is material, the lawyer violates Rule 3.3(a)(1). Material and knowing misstatements of facts related to the appellate process also violate Rule 3.3(a)(1). For example, the Colorado Supreme Court has affirmed findings of Rule 3.3(a)(1) violations where a lawyer misidentified herself as the appellant’s appointed counsel in a notice of appeal,9 and where a lawyer backdated a brief and made false statements about its fling date in her opposition to a motion to dismiss the appeal.
Similarly, when a lawyer “ghostwrites” an appellate fling for an ostensible pro se litigant, the lawyer may violate Rule 3.3(a)(1). Under Colorado Appellate Rule 5(e), a lawyer may draft appellate pleadings and briefs without entering an appearance, so long as the flings identify the drafting attorney.11The Tenth Circuit, however, has no comparable rule and has held that “[t]he duty of candor toward the court mandated by Model Rule 3.3 is particularly significant to ghostwritten pleadings.” In the Tenth Circuit, “the participation by an attorney in drafting an appellate brief is per se substantial [assistance], and must be acknowledged by signature.”13
As an advocate, an appellate lawyer has an obvious responsibility to present legal arguments as advantageously as possible and is “not required to present an impartial exposition of the law. . . .”14 But just as obviously, a lawyer may not misstate the law in any context, including in an appeal, because “[l]egal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal.”15Yet, lawyers breach this duty with alarming frequency, including when they cite decisions that have been reversed or otherwise limited,16 quote from dissenting or concurring opinions without notation,17 replace key text in quotes with ellipses,18 and misstate or overstate case holdings and other authorities.19
Disclose Relevant Legal Authority
A lawyer’s Rule 3.3(a)(2) duty 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” requires an understanding of the meaning of (1) a “tribunal,” (2) “legal authority in the controlling jurisdiction,” and (3) “directly adverse.”
The ethics rules define a “tribunal” as “a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity,”20a definition that clearly includes an appellate court. The definition does not include a neutral in a mediation and, therefore, Rule 3.3(a)(2) does not apply to a lawyer participating in an appellate mediation, although other rules do apply.21
Significantly, Rule 3.3(a)(2) does not refer to “controlling authority” but instead requires disclosure of directly adverse “legal authority in the controlling jurisdiction.” “Legal authority” includes court decisions, statutes, rules, and regulations, and may also include decisions that are not yet final. Most important, it is not limited to decisions that constitute binding precedent in the jurisdiction but also encompasses on-point, yet non-binding, decisions of lower or coordinate courts.23 The “controlling jurisdiction” is generally construed to mean, in state cases, the forum state, and in federal cases, the judicial district or circuit.24 Of course, any on-point U.S. Supreme Court decision should be disclosed, regardless of where the appeal is pending.
There’s room for debate on the meaning of “directly adverse” authority, but the safest test is one the American Bar Association articulated in 1949 and some courts have applied in the ensuing...