January 27, 2021 Practice Points

Candor Toward the Tribunal: The Duty to Cite Adverse Authority

It is easy to misconstrue Model Rule 3.3(a)(2).

By Alan D. Strasser

The recent surge of interest in lawyers’ ethics suggests that we should review the ethics rule requiring lawyers to cite adverse authority, Model Rule 3.3(a)(2). That rule forms part of the rule on candor toward the tribunal, which describes “the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process” and states that legal argument is “a discussion seeking to determine the legal premises properly applicable to the case.”

Model Rule 3.3(a)(2) requires a lawyer to cite authority that is “directly adverse,” to the position the lawyer’s client is taking, with three important caveats: 1) the lawyer must know the authority is “directly adverse”; 2) the authority must be in the “controlling jurisdiction”; and 3) the authority was not disclosed by opposing counsel. 

It is easy to misconstrue this rule. A long-standing ABA ethics opinion (Formal Opinion 280) explains that the requirement that the lawyer “know” the authority is adverse means that the lawyer thinks that the decision is one “the court should clearly consider in deciding the case.” Neither the adverse authority itself nor the issuing court need be “controlling.” Thus, some trial courts have criticized counsel for failing to cite decisions—even unpublished decisions—by other trial judges in the same district.

The psychological pull to omit the adverse authority can be powerful, so a lawyer might be tempted to conduct such limited or sloppy research that he or she never finds the adverse authority and so did not “knowingly” avoid it. Deliberately conducting sloppy research would violate a lawyer’s duty of competence under Model Rule 1.1 and diligence under Model Rule 1.3. Worse still, it probably will constitute a knowing violation of Rule 3.3, as the Model Rules permit knowledge to be “inferred from circumstances.” In any case, the sloppy-research defense is risky to offer to a tribunal, or a disciplinary authority, which would likely infer knowledge from the willful blindness. As the lawyer can’t truthfully describe to a tribunal his or her deliberate avoidance of the adverse authority, the lawyer may compound his or her ethical violations by falsely describing his or her deficient research plan as “sloppy” where it actually was deliberate. The false explanation will be a new and separate ethical violation.

Once the lawyer finds the adverse authority, can he or she wait to see if the opponent cites it? If no one cites it, the lawyer may reason, then the authority may slip past the court. That approach may succeed occasionally, but only at the risk of ethical compromise and tactical blunder. It is usually a bad strategy to bank on the incompetence of one’s opponent, and it is doubly unwise to cede control of one’s own ethical compliance to an opponent, whose incentives cannot and should not be to make the lawyer look ethical or competent.

Worse still will be the judge’s reaction: If the judge discovers the adverse authority that neither side cited, the judge will think that the opponent is incompetent for overlooking authority that strengthened his or her case. But the judge is likely to think that the lawyer is dishonest for omitting authority that weakened the judge’s own authority. If the opponent does cite the authority, the judge likely will think the lawyer dishonest and reject the lawyer’s belated effort to distinguish the adverse authority, which will be undercut by any explanation of why it wasn’t cited and distinguished in opening papers. Having given up any tactical advantage that might have come from framing the debate before the opponent touted the adverse authority, the lawyer’s strategy to “save it for the reply” risked both an ethical violation and a tactical disaster.

And the consequences for violating the rule? The personal misery for the lawyer can be extensive, beyond the displeasure of the client who may now think their lawyer cost them a case. But those issues are a topic for another day.

Alan D. Strasser is a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP in Washington D.C.

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