Writing Matters

• Publication year: 2013
• Pages: 0080

Writing Matters Vol. 19 No. 1 Pg. 80 Georgia Bar Journal August, 2013

Disarming Your Opponent: Effective Use of Adverse Authority

by Karen J. Sneddon and David Hricik

This installment of "Writing Matters" examines the disclosure of adverse legal authority to tribunals. We briefly examine the ethical duty that lawyers owe to tribunals to disclose adverse legal authority before explaining why effective advocates do far more than disclose controlling legal authority. Instead, they use their opponents' best weapons against them.

The duty to conduct reasonable inquiry into the laws and fact to avoid frivolous filings arises from Rule 11 of the Federal Rules of Civil Procedure, state analogs to that rule, ethical principles and state substantive law precluding frivolous legal proceedings.^[1] In the course of this due diligence, lawyers may learn of adverse legal authority. As part of their duty of candor, lawyers must disclose controlling adverse legal authority to a tribunal.^[2]

Of course, with rare exceptions, ^[3] even controlling authority can be distinguished. The test for whether a case is "controlling enough" so that it must be disclosed is sometimes stated as whether a reasonable judge would feel misled by the implied representation that the lawyer knew of no adverse authority.^[4] While of uncertain breadth, this narrow duty has some purchase. For example, in a federal case from this past spring, ^[5] a federal judge ordered lawyers to attend 10 additional hours of ethics CLE for misunderstanding this duty. The lawyer argued that a duty to disclose controlling adverse authority would chill zealous advocacy. The court called this view of a lawyer's professional obligations "sadly skewed."^[6]

That view is sadly skewed: lawyers have a clear obligation to disclose controlling adverse legal authority. Just as a rule prohibiting frivolous filings "chills" zealous representation, so too does a rule requiring disclosure of adverse legal authority. The rules balance competing interests.

But we believe lawyers often should disclose and distinguish even persuasive adverse authority and do so in an opening brief, before the authority is addressed by the opposing party. The practical benefits of doing so are clear.

First, competent opposing counsel is likely to find the adverse authority anyway. So, the cases will be before the judge. The real issue is which party gets to address the cases first, the movant or the respondent. By addressing...