Judge Posner held:
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don’t know the thinking that led the appellants’ counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987).
Gonzalez-Servin,662 F.3d at 934 (emphasis in original).
The decision included photographs of an ostrich and an attorney with their respective heads in the sand.
While the court did not impose monetary sanctions on the attorneys, the decision could not have been more embarrassing to the attorneys (especially the attorney whose opening brief was filed after Abad and Chang—Judge Posner mentioned him in the decision by name). But if the Gonzalez-Servin decision were the only word on this issue, an appellant attorney would not lose much sleep. Gonzalez-Servin involved directly applicable precedent from the same jurisdiction. Any competent attorney would know of such authority and attempt to deal with it. (And if it could not be dealt with, it would behoove the counsel to advise the client that an appeal would be unlikely to succeed.) But Gonzalez-Servin is not the only authority to address this issue.
As early as 1935, the ABA Committee on Professional Ethics and Grievances addressed this issue in Formal Opinion 146. The opinion was grounded in Canon 22 of the ABA Canons of Professional Ethics, adopted on August 27, 1908. Entitled “Candor and Fairness,” Canon 22 did not directly address whether an attorney has an ethical duty to point out authority adverse to his or her client’s position. The question raised in that opinion was: “Is it the duty of a lawyer appearing in a pending case to advise the court of decisions adverse to his client’s contentions that are known to him and unknown to his adversary?” Answering this question in the positive, the committee opined:
A lawyer is an officer of the court (Ex parte Garland, 4 Wall 333, 3378; People vs. Gorman, 178 N.E. 880, 346 Ill. 432; Bowles vs. United States [C.C.A. 4 50 Fed [2d] 848]. His obligation to the public is no less significant that his obligation to his client (In re Bergeron, 220 Mass. 472, 107 N.E. 1007). His oath binds him to the highest fidelity to the court as well as to his client (In re Bergeron, supra). It is his duty to aid the court in the due administration of justice (Dodge vs. State, 104 Ind. 284, 39 N.E. 745; People vs. Gorman, supra; United States vs. Frank, 53 Fed. [2d] 128).
The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness. Canon 22.
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.
ABA Formal Op. 146 (1935).
In 1949, the committee again addressed this question in its Formal Opinion 280. In looking to 1935’s Formal Opinion 146, the committee noted that because “the Committee refers to the right of the lawyer to ‘challenge the soundness of the decisions or present reason which he believes would warrant the court in not following them in the pending case,’ but does not refer to his right to ‘distinguish’ them,” it appeared “that the Committee had in mind only decisions which were directly adverse.” In considering the extent of a lawyer’s duty, the committee opined:
The lawyer, though an officer of the court and charged with the duty of “candor and fairness,” is not an umpire, but an advocate. He is under no duty to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness. Nor is he under any obligation to suggest arguments against his position. His personal belief in the soundness of his cause or of the authorities supporting it, is irrelevant. See Canons 5 and 15.
We would not confine the Opinion to “controlling authorities”—i.e., those decisive of the pending case—but in accordance with the tests hereafter suggested, would apply it to a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case.
Of course, if the court should ask if there are any adverse decisions, the lawyer should make such frank disclosure as the questions seems [sic] to warrant. Close cases can obviously be suggested, particularly in the case of decisions from other states where there is no local case in point (see Glebe Company v. Trustees, 37 T.L.R. 436 [1921 A.C. 66] where the dicta of Lord Birkenhead are very broad. Also 15 Law Quarterly Rev. 259, 273-75; 69 Albany L.J. 300, 303; “The Seven Lamps of Advocacy” by Edward A. Parry (1923) pp. 19-20, “The Advocate” (Cecil Walsh) (2d Ed.) p. 100). A case of doubt should obviously be resolved in favor of the disclosure, or by a statement disclaiming the discussion of all conflicting decisions.
Canon 22 should be interpreted sensibly, to preclude the obvious impropriety at which the Canon is aimed. In a case involving a right angle collision or a vested or contingent remainder, there would seem to be no necessity whatever of citing even all the relevant decisions in the jurisdiction, much less those from other states or by inferior courts. Where the question is a new or novel one, such as the constitutionality or construction of a statute, on which there is a dearth of authority, the lawyer’s duty may be broader. 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? Would a reasonable judge properly feel that a lawyer who advanced, as the law, a proposition adverse to the undisclosed decision, was lacking in candor and fairness to him? Might the judge consider himself misled by an implied representation that the lawyer knew of no adverse authority?
ABA Formal Op. 280 (1949).
Unlike the ABA Canons of Professional Ethics, the ABA Model Rules of Professional Conduct, adopted in 1983, speak directly, if not entirely clearly, to this issue. Rule 3.3(a)(2) states 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.” (Virtually identical language was contained in DR 7-106(B)(1) of the Model Code of Professional Responsibility, which preceded the Model Rules of Professional Conduct.)
In ABA Informal Opinion 84-1505, the ABA Committee on Ethics and Professional Responsibility addressed whether an attorney was required to disclose a precedent that could be interpreted as being directly contrary to a prior decision of the trial court denying a motion to dismiss. The issue raised in the new precedent was not under consideration by the trial court at the time the query was presented to the committee but could be revived because the prior ruling denying the motion to dismiss was not a final, appealable order.
The committee decided, following Rule 3.3(a)(3), that
under the circumstances presented . . . plaintiff’s lawyer must disclose the newly discovered authority to the court and that he must do so promptly. Of course, he may challenge the soundness of the other decision, attempt to distinguish it from the case at bar, or present other reasons why the court should not follow or even be influenced by it.
ABA Informal Op. 84-1505 (1984).
Accordingly, the ethical obligation set out in the rule continues until the end of the case. The committee also cited Seidman v. American Express Co., 523 F. Supp. 1107 (E.D. Pa. 1981), in which the court, on similar facts, reached the same conclusion as did the panel.
Rule 28(j) of the Federal Rules of Appellate Procedure deals with new authority that comes to a party’s attention before a decision is rendered. The rule provides as follows:
If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
This rule, however, is merely permissive and allows a party to present authority that had not been available at the time of briefing or argument or that addressed an issue that arose during oral argument. Because of the permissive language (“may”), the rule should be seen as way of bringing to the court’s attention new authority that supports the position of the party disclosing the authority. Rule 28(j) does not serve the same purposes as the ethical rule; it is a procedural rule of advocacy, not ethics.
Another issue arising from this ethical rule is whether the failure to cite adverse authority can constitute a violation of Rule 11 of the Federal Rules of Civil Procedure. In Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F.2d 1531 (9th Cir. 1986), the Ninth Circuit held that Rule 11, in an ordinary matter, would not require the issuance of sanctions against a party that did not cite adverse authority. (At the time Golden Eagle was decided, the terms of Rule 11 had been held to be mandatory, but that is no longer the case.) The court stated:
Were the scope of the rule to be expanded as the district court suggests [imposing sanctions for failure to cite adverse authority], mandatory sanctions would ride on close decisions concerning whether or not one case is or is not the same as another. We think Rule 11 should not impose the risk of sanctions in the event that the court later decides that the lawyer was wrong. The burdens of research and briefing by a diligent lawyer anxious to avoid any possible rebuke would be great. . . .
The burden is illustrated in this case where the district court based its imposition of sanctions in part upon Kirkland & Ellis’s failure to cite authorities which the court concluded were directly adverse to a case it did cite. The district court charged the appellant with constructive notice of these authorities because they were identified in Shepard’s as “distinguishing” the case Kirkland & Ellis relied on.
This use of Rule 11, far from avoiding excess litigation, increases it. We must not interpret Rule 11 to create two ladders for after-the-fact review of asserted unethical conduct: one consisting of sanction procedures, the other consisting of the well-established bar and court ethical procedures. Utilizing Rule 11 to sanction motions or pleadings not well-grounded in fact or law, or papers filed for improper purposes, gives full and ample play to the 1983 amendments [to Rule 11].
Id. at 1542.
The court concluded that
neither Rule 11 nor any other rule imposes a requirement that the lawyer, in addition to advocating the cause of his client, step first into the shoes of opposing counsel to find all potentially contrary authority, and finally into the robes of the judge to decide whether the authority is indeed contrary or whether it is distinguishable. It is not in the nature of our adversary system to require lawyers to demonstrate to the court that they have exhausted every theory, both for and against their client.
Id. See also United States v. Stringfellow, 911 F.2d 225, 226 (9th Cir. 1990) (“The failure to cite relevant authority, whether it be case law or statutory provisions, does not alone justify the imposition of sanctions.”); Thompson v. Duke, 940 F.2d 192, 198 (7th Cir. 1991) (same) (quoting Stringfellow); cf. Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 96 (3d Cir. 1988) (refusing to impose sanctions under rule for failure to abide by a “duty of candor” to the court).
However, this issue is not black and white. The Eleventh Circuit, in DeSisto College, Inc. v. Line, 888 F.2d 755, 766 (11th Cir. 1989), cert. denied, 495 U.S. 952 (1990), stated, “[W]e believe that Counsel had a duty to acknowledge at some point . . . that the binding precedent of this Circuit disfavored Plaintiffs’ position on legislative immunity.” The court held that the district court had not abused its discretion by imposing sanctions for failure to make such a disclosure to the court. Id.
And courts have held that if the omitted authority would render the party’s argument frivolous, sanctions can be imposed. Golden Eagle, 801 F.2d at 1542; Stringfellow, 911 F.2d at 226. But the Seventh Circuit, while upholding the denial of a motion to impose sanctions where a party had not cited adverse precedent, made clear that such failure was improper. Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1046–47 (7th Cir. 1989), cert. denied, 495 U.S. 957 (1990). Indeed, the court reviewed the district court’s decision not to impose sanctions for abuse of discretion and upheld the district court’s decision on that issue solely because the district court had not abused its discretion. In light of the court’s criticism of the attorney’s failure to cite adverse authority (referring to it as “a poor example of an attorney conforming to his duties as an officer of the court”), perhaps the court would not have found any fault with the district court had it ruled the other way. Of course, the Seventh Circuit, in Thompson v. Duke (cited above), decided after Mannheim, appears to have clarified the circuit’s position on imposing sanctions for failure to cite to adverse precedent, holding that such a failure alone does not warrant sanctions.
At least one circuit court has taken the position that the knowing failure to address adverse authority can constitute a violation of Rule 38 of the Rules of Appellate Procedure. In Hendrix v. Page (In re Hendrix), 986 F.2d 195 (7th Cir. 1993), the Seventh Circuit stated:
[I]f Atlanta Casualty’s counsel knowingly concealed dispositive adverse authority it engaged in professional misconduct. ABA Model Rules of Professional Conduct Rule 3.3(a)(3) (1983). The inference would arise that it had filed the appeal for purposes of delay, which would be an abuse of process and thus provide an additional basis for imposition of sanctions under Fed.R.App.P. 38 (“damages for delay”). A frivolous suit or appeal corresponds, at least approximately, to the tort of malicious prosecution, that is, groundless litigation; a suit or appeal that is not necessarily groundless but was filed for an improper purpose, such as delay, corresponds to—indeed is an instance of—abuse of process. Both, we hold, are sanctionable under Rule 38. We direct Atlanta Casualty’s counsel to submit within 14 days a statement as to why it or its client, or both, should not be sanctioned under Rule 38 for failing to cite the Shondel case to us.
Id. at 201 (citations omitted).
Not surprisingly, given the number of issues involved and the number of courts interpreting the rule, there is no clear answer for the precise amount of candor due to courts with regard to disclosing adverse authority. In addition to the above cases (which are by no means a complete recital of all federal case law on the issue), state courts have separate authority to interpret the relevant ethical rules as well as to determine whether a violation of such rules is sanctionable under state law. A prudent appellate attorney always should look to the law of the jurisdiction in which he or she is practicing and act accordingly. As Judge Posner made clear, an appellate attorney cannot stick his or her head in the sand when an adverse case is found. Doing so may result in an unpleasant situation, to say the least.
Keywords: litigation, appellate practice, adverse precedent, Federal Rule of Appellate Procedure 38, Model Rules of Professional Conduct
Sanford Hausler is of counsel to Cox Padmore Skolnik & Shakarchy LLP in New York, New York.