Lawyers have a duty to disclose adverse legal authority even if it hurts their case
An attorney researches a legal question and finds a controlling case that is adverse to her client’s position. Surprisingly, the opposing counsel neglects to cite the case to the court in her pleadings.
What is the attorney to do? After all, attorneys are supposed to be a zealous advocates for their clients and win their cases. Should she mention the case and distinguish it, or just ignore the case and cite other authorities?
The answer may seem counterintuitive to some, but the ABA Model Rules of Professional Conduct provides a clear requirement: Attorneys must cite directly adverse legal authority controlling in the court’s jurisdiction. The duty applies even when the attorney on the other side fails to cite such authority. Labeled under the title “Candor Toward the Tribunal,” Model Rule 3.3(a)(2) reads 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.”
Comment 4 to the rule explains that it’s based on the premise that lawyers are engaged in legal argument, which is a discussion: “The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.”
Central to the underpinnings of the rule is that lawyers play different roles in the legal system. Lawyers are often viewed primarily as advocates unilaterally pursuing their client’s positions in court, but they are also officers of the court.
“As an officer of the court, the attorney has the duty of candor,” says Susan Saab Fortney, a professor and director of the Program for the Advancement of Legal Ethics at Texas A&M University School of Law. “If the duty of candor is triggered, it trumps or tempers duties to clients. The duty to disclose adverse authority is considered an important one to help judges decide on cases based on precedent—serving the principle of stare decisis.”
The rule is part of the profession’s commitment that attorneys must follow the duty of candor to help the system find the truth. “The ultimate goal of the legal system is to obtain justice,” says Jan L. Jacobowitz, director of the Professional Responsibility and Ethics Program at the University of Miami School of Law. “We do this through an adversarial system of justice designed to bring out the truth. The rule about disclosing directly adverse legal authority is designed not so much to help the other side but to provide an accurate picture for the court.”
History of the Rule
The rule is not new for the ABA. The ABA’s original ethics rules, the 1908 Canons of Ethics, included Canon 22, which said: “The conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness.”
In 1935, the ABA Committee on Professional Ethics and Grievances issued Formal Opinion 146 to answer the question of whether a lawyer had a duty to advise the court of adverse decisions that opposing counsel had not disclosed. The opinion responded yes, stating: “We are of the opinion that this canon requires the lawyer to disclose such decisions to the court. He may, of course, after doing so, challenge the soundness of the decisions or present reasons which he believes would warrant the court in not following them in the pending case.”
Fourteen years later, the ABA Committee on Professional Ethics and Grievances issued Formal Opinion 280 after one of its members asked the committee to reconsider and clarify Opinion 146. The committee reiterated that the duty of candor included the duty to cite to the court directly adverse legal authority. However, the opinion also took a broad view of what type of authorities fall within this ambit: “The test in every case should be: Is the decision which opposing counsel has overlooked one which the court should clearly consider in deciding the case?”
The current rule to cite directly adverse legal authority is directly tied to the duties of competence and diligence found in Rules 1.1 and 1.3, respectively. “It is a matter of competence to be aware of adverse legal authority,” Jacobowitz notes. “It also is a fundamental requirement in the duty of diligence to be knowledgeable and prepared,” which should include familiarity with adverse legal authority.
Interpreting the Rule
The rule prohibits attorneys from “knowingly” failing to cite directly adverse legal authority. Ostensibly, the rule would not apply to lawyers who fail to find the applicable case law because they are negligent. That raises the question as to whether the rule goes far enough. Should it also apply to lawyers who didn’t knowingly fail to cite the directly adverse legal authority?
“I think that the rule should be limited to ‘knowing,’ ” Fortney says. “Otherwise you will have issues of mens rea and proof. As it is, the duty only kicks in when the other side fails to disclose. In some ways, the rule already accounts for the possibility that one lawyer (the adversary) fails to do his/her job.”
It can be difficult to prove that a lawyer knowingly failed to cite directly adverse legal authority.
“I think that it is hard to enforce the rule because the regulator would have to offer proof of knowledge,” Fortney says. “If the other side did not know about the authority, it may be difficult to prove that the respondent lawyer had knowledge of the directly adverse controlling authority.”
Some of the published cases involving the rule apply where the lawyer who failed to cite the prior case was actually the attorney of record in the prior case. Consider State v. Tyler (2001) from the Court of Appeals of Alaska. The defense attorney, Eugene Cyrus, failed to cite a leading case on the impact of prior driving while intoxicated convictions on another charge—an Alaska case called McGhee v. State (1998). There was a problem, as the court explained, because Cyrus was the attorney of record in McGhee.
Another part of the rule is that on its face it applies to those cases that are “directly adverse.” There could be cases that are only tangentially adverse. “There could always be gradations of what is clearly adverse,” Jacobowitz acknowledges.
However, courts look suspiciously at lawyers who claim that they didn’t cite a case because it is merely tangentially adverse. A federal district court in Maryland referred to this position as a “bold and risky gambit” in Prince George’s County v. Massey (1996), a case in Maryland federal district court. The better practice for attorneys is to cite cases that seem to be adverse and then distinguish them. It is far better to do that than to raise the court’s ire or suspicion that the lawyer is being less than candid.
The key is that attorneys need to realize their different roles when considering candor toward courts. “Lawyers serve not only as zealous advocates for their clients but also as officers of the court,” Jacobowitz says.
This article appeared in the June 2019 issue of the ABA Journal under the headline: "Even If It Hurts Your Case: Lawyers have a duty to disclose adverse legal authority"