In litigation, must I reveal something that the judge would probably want to know but that will hurt my client? Professional conduct rules, judicial decisions, and bar association ethics opinions helpfully tell us, “Sometimes yes, sometimes no.”
Yes, you have to disclose when you learn that a prospective juror lied in voir dire or that a juror is blogging about the ongoing trial. No, if you represent a criminal defendant, you do not have to volunteer to the judge that your client violated bail conditions or, at sentencing, that your client has prior convictions of which the judge is unaware. Yes, you must tell the judge when you learn that your client, the plaintiff in a civil case, is deceased. No, you need not disclose decisions from the neighboring jurisdiction that are directly adverse to your legal position.
Courts hold trial lawyers to a duty of good faith and candor to the tribunal. But the scope of this duty is not always self-evident. In situations where this duty is in tension with the lawyer’s fiduciary duties to the client, lawyers may face hard questions of professional conduct. Lawyers do not always answer these questions correctly from the courts’ after-the-fact perspective. But lawyers can be expected to make a good-faith effort to get the right answer. What does that entail? Consider the following scenario.
While representing a client in litigation, you learn information, unknown to the other side, that might require the trial judge’s recusal from the case. For example, you discover that the judge has a significant financial interest in the outcome of the lawsuit or a significant personal relationship with a party or lawyer in the case. And suppose further that the judge has not disclosed the relevant information in the course of the proceedings and, as far as you can tell, has not considered whether to withdraw. Perhaps the judge knows the facts but mistakenly overlooks their significance. Must you alert the judge and opposing counsel?
The answer may be easier if you are unhappy with the judge’s rulings or expect the judge to disfavor your client in later proceedings, so that you would rather another judge were assigned to the case. Then there is strategic value to filing a recusal motion or, at the very least, to disclosing the problem and inviting the judge to consider whether to take the initiative to withdraw. But the answer is harder if the judge is a good one, or a very good one, from your client’s perspective.
The Al-Nashiri Case
This question was recently lurking in a criminal case arising out of the prosecution of an alleged terrorist. See In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019). The government captured Abd Al-Rahim Hussein Muhammed Al-Nashiri in 2002 and has been holding him in Guantánamo, where he awaits trial on capital charges for allegedly participating in al Qaeda’s bombing of the U.S.S. Cole, which killed 17 American sailors. Under a 2009 law, Al-Nashiri is to be tried before a military commission.
In 2014, an Air Force colonel was assigned to preside over Al-Nashiri’s case. A year into his commission, the presiding military judge applied to work in the U.S. Department of Justice as an immigration judge. While the Justice Department processed his application and then negotiated his employment, the judge ruled on important, contested questions. Meanwhile, the judge did not disclose to the defense that he was seeking a job with the very government department that was serving as co-counsel for the prosecution.
Lawyers in the Justice Department—perhaps including the trial lawyers participating in Al-Nashiri’s prosecution—knew that the military judge was job hunting with the Justice Department while presiding over a capital case that the Justice Department was helping to prosecute. Any lawyer aware of these facts would presumably know that the judge should consider recusing himself from the case. The court of appeals later ruled:
It is beyond question that judges may not adjudicate cases involving their prospective employers. The risk, of course, is that an unscrupulous judge may be tempted to use favorable judicial decisions to improve his employment prospects—to get an application noticed, to secure an interview, and ultimately to receive an offer. And even in the case of a scrupulous judge with no intention of parlaying his judicial authority into a new job, the risk that he may appear to have done so remains unacceptably high.
Suppose that you are a lawyer on the Justice Department prosecution team who knows these facts but does not want the presiding judge to recuse himself because substituting a new judge would lead to further delay, because this judge seems disposed to rule in the government’s favor, or for other reasons. What do you do?
Like many questions of professional conduct in the course of litigation, this one implicates competing duties to the client and to the court. On the one hand, lawyers have ethical and fiduciary duties to seek to achieve their clients’ lawful objectives; to represent their clients competently, loyally, and zealously; and to maintain their clients’ confidences. On the other hand, lawyers are said to be “officers of the court” whose duties to justice limit what they may do to advance their clients’ interests. As the Al-Nashiri case illustrates, these different sets of professional obligations occasionally pull lawyers in opposite directions.
Lawyers in the Justice Department who encounter questions of professional conduct can seek other lawyers’ help in identifying and analyzing the laws, rules, judicial decisions, and other writings that may provide answers. The Justice Department’s lawyers can seek guidance not only from supervisors but also from a separate Professional Responsibility Advisory Office.
Lawyers in the private sector who encounter disclosure questions like the one in Al-Nashiri might start by looking for a disclosure rule or law specifically on point. In both criminal and civil cases, discovery rules, procedural statutes, and, in the case of prosecutors, constitutional case law require various pretrial disclosures. But for the most part, required disclosures relate to evidence bearing on the disputed factual and legal issues in the case. No jurisdiction has a law or rule specifically requiring lawyers to make recusal motions or volunteer facts bearing on judicial recusal.
Rules of Professional Conduct
Another obvious place to look would be the jurisdiction’s professional conduct rules. Although they vary from state to state, professional conduct rules in every U.S. jurisdiction build substantially on the ABA’s Model Rules of Professional Conduct. Because the professional conduct rules are written in general terms in order to cover a wide range of situations, none explicitly discusses disclosures regarding recusal motions. But several may still be germane.
For starters, the very title of Model Rule 3.3—Candor to the Tribunal—suggests the possibility of a disclosure duty to the court. As Judge Posner explained in an opinion several years ago, “[t]here is a difference, famously emphasized by Kant, between a duty of truthfulness and a duty of candor, or between a lie and reticence.” City of Livonia Emp. Ret. Sys. v. Boeing Co., 711 F.3d 754, 758–59 (7th Cir. 2013). While truthfulness simply calls for avoiding false statements, candor implies disclosing relevant information. Factual and legal grounds for recusal are surely relevant to the trial judge, who has an obligation to comply with applicable judicial ethics rules governing conflicts of interest.
Rule 3.3, however, does not expressly require lawyers to tell judges what they might want or need to know, except in ex parte proceedings, where lawyers must “inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” As the New York City Bar’s ethics committee recently highlighted, there may sometimes be uncertainty regarding whether a proceeding is “ex parte.” N.Y. City Bar, Formal Ethics Op. 2019-1 (2019). But the proceedings in Al-Nashiri’s case were unquestionably adversarial, not ex parte.
In adversarial proceedings, Rule 3.3 tells lawyers not to “make a false statement of fact or law to a tribunal”—that is, not to lie. Lawyers must also “correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Otherwise, the rule does not require the voluntary disclosure of facts that are adverse to the client’s position. Ordinarily, it is opposing counsel who has the burden of uncovering and proffering such facts.
But not so fast. An interpretive comment accompanying Rule 3.3 cautions that “[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” So the rule implicitly requires candor—the disclosure of relevant information—in some circumstances. The comment does not say whether it is the equivalent of an affirmative representation for a lawyer to withhold that the judge may have a recusal obligation.
Like Rule 3.3, various other rules express the general idea that, as officers of the court, lawyers have some obligation to promote the fairness and reliability of the legal proceedings in which they participate. For example, lawyers must report judges’ serious misconduct (Rule 8.3(b)) and must refrain from “conduct that is prejudicial to the administration of justice” (Rule 8.4(d)). But these injunctions, and others, also do not speak explicitly to whether a lawyer must disclose grounds for the judge’s recusal.
Sometimes a lawyer is lucky enough to locate opinions explaining how the general rules apply to the lawyer’s precise situation. A very lucky lawyer will find an authoritative judicial decision in the lawyer’s own jurisdiction. But the Justice Department prosecutors in Al-Nashiri’s case would have had no such luck. They might have found two bar association opinions issued in Michigan more than 20 years ago, concluding, based on Michigan’s Rule 8.4, that when a judge fails to disclose facts that would require the judge’s recusal, a party’s lawyer who knows the facts must make disclosure. See State Bar of Mich., Ops. JI-79 (1994) and J-6 (1996). However, these opinions are not authoritative even for Michigan lawyers; they simply provide a bar association committee’s best judgment about how its state’s rules apply. The government lawyers would have found little else, if anything, offering specific guidance on how the professional conduct rules resolve the tension between their competing duties.
Lawyers might be tempted to stop there. But that would be a big mistake. Long before courts adopted professional conduct rules, they issued opinions telling trial and appellate lawyers what judges expect of them. In fact, the professional conduct rules governing litigators’ ethics are, to a large extent, codifications of earlier judicial rulings. Professional conduct rules do not supersede courts’ authority to continue issuing pronouncements about how lawyers should conduct themselves in adjudicative proceedings. Courts can supplement and build on the professional conduct rules. Courts do so informally in statements from the bench. They also do so in published opinions telling lawyers what being an “officer of the court” requires. Lawyers in future cases are expected to comply with the courts’ written pronouncements.
Judicial decisions emphasize that as officers of the court, lawyers have “the duty of good faith and candor in dealing with the judiciary.” Chicago v. Higginbottom, 579 N.E.2d 890, 907 (Ill. App. Ct. 1991). This duty requires broader disclosure than the professional conduct rules require. In a 1993 decision on which various other courts have relied, the Fourth Circuit made this point explicitly:
While Rule 3.3 articulates the duty of candor to the tribunal as a necessary protection of the decision-making process, . . . and Rule 3.4 articulates an analogous duty to opposing lawyers, neither of these rules . . . displaces the broader general duty of candor and good faith required to protect the integrity of the entire judicial process.
United States v. Shaffer Equip. Co., 11 F.3d 450, 458 (4th Cir. 1993).
In particular, courts sometimes expect trial lawyers to disclose facts casting doubt on the court’s jurisdictional authority to decide the case or on the fairness of the judicial process. For example, the Ninth Circuit upheld a court’s sanction of counsel for failing to disclose his potential conflict of interest, thereby disabling the court from evaluating whether to disqualify the lawyer. The court emphasized that the lawyer was not just “an advocate for his client” but that, as “an officer of the court,” he had “a duty of good faith and candor in dealing with the judiciary,” which he breached by deliberately failing to disclose potentially disqualifying information. United States v. Associated Convalescent Enters., 766 F.2d 1342, 1346 (9th Cir. 1985).
One might fairly conclude that, as an ordinary matter, a lawyer’s duty of good faith and candor to the court requires disclosing grounds for a judge’s disqualification no less than for a lawyer’s disqualification. See Bernard v. Coyne, 31 F.3d 842, 847 (9th Cir. 1994) (“Counsel for a party who believes a judge’s impartiality is reasonably subject to question has not only a professional duty to his client to raise the matter, but an independent responsibility as an officer of the court.”). While doubts about a judge’s impartiality do not present a jurisdictional problem, they do call into question the fundamental fairness of the proceedings.
On the other hand, in Al-Nashiri’s case, the presiding judge already knew the potentially disqualifying fact that he was seeking a position in the Justice Department. And in the unusual setting of a military trial, the military judge already has a tie to the government and a potential interest in ruling favorably to the government in order to curry favor and advance within the military. Pursuing a potential employment relationship with the Justice Department may have seemed no different. And while the court of appeals concluded that the military judge was legally obligated to recuse himself, the Justice Department was able to advance a variety of arguments to the contrary.
If any lawyers have a disclosure obligation in this situation, it is surely government lawyers. In civil and administrative actions, government lawyers are said to have “the responsibility to seek justice and to develop a full and fair record.” Jones v. Heckler, 583 F. Supp. 1250 (N.D. Ill. 1984) (quoting ABA Code of Prof’l Responsibility, Ethical Consideration 7-14). Criminal prosecutors in particular have “the responsibility of a minister of justice and not simply that of an advocate.” Model Rules of Prof’l Conduct 3.8 cmt. . Among other things, this carries with it “a heightened duty of candor to the courts.” ABA Criminal Justice Standards for the Prosecution Function, Standard 3-4(a). In Al-Nashiri’s case, the Justice Department lawyers could ensure that the recusal question received the thoughtful judicial resolution it deserved, following input from both sides, only by disclosing the judge’s job application in the proceedings and alerting the court that this presented potential grounds for recusal.
In Al-Nashiri’s prosecution, Justice Department lawyers evidently did not think that their heightened duty of candor to the court obligated them to raise the recusal question. They said nothing to the court or the defense after the presiding judge applied for a job, or later after he was offered a job as immigration judge, or even later as he negotiated the terms of his employment.
And in the summer of 2018, when Al-Nashiri’s defense team specifically inquired into whether the judge had sought a job with the Justice Department, the prosecutors stonewalled. The court of appeals recounted that, after hearing reports that the presiding military judge had applied to be an immigration judge,
Al-Nashiri’s lawyers submitted a request for discovery on the matter, but the government refused, calling the reports “unsubstantiated assertions” and arguing that the “[d]efense request offers no basis to believe that the former presiding military judge has applied for a position with the [Justice Department] or even contacted the [Justice Department] regarding employment.” . . . Less than a week later, however, an Associated Press photograph surfaced showing [the military judge] standing next to Attorney General Sessions at a welcome ceremony for new immigration judges.
By that point, one might fairly conclude, the Justice Department lawyers had progressed from a simple lack of candor to affirmatively misleading representations. Although their statements were not outright lies, they were calculated to convey the false impression that the military judge had not in fact applied for a Justice Department position.
If the department’s lawyers imagined that the judge’s job search had limited legal significance, they were sadly mistaken. The court of appeals found that throughout the two years when he pursued employment with the Justice Department, the military judge was legally obligated to recuse himself in Al-Nashiri’s case. It issued a writ of mandamus vacating every order he issued in the case during that period.
In reaching this decision, the court had no reason to inquire into the ethical propriety of the prosecutors’ conduct; consequently, its opinion sheds little light on why the prosecutors failed to disclose the facts necessitating the military judge’s recusal, including after the defense inquired. But the Justice Department lawyers’ ethical decision-making process is important. Lawyers who act unethically deserve opprobrium—and, at times, sanction—if they were simply indifferent to, or cavalier about, an ethical dilemma. On the other hand, lawyers encountering hard ethics questions deserve sympathy and consideration when they make a good-faith attempt to do the right thing even if, in hindsight, a court concludes they fell short.
The professional conduct rules do not offer a detailed road map for resolving ethics questions, but they do provide considerable guidance. As the late Professor Geoffrey Hazard, a leading authority on legal ethics, observed years ago, lawyers who resolve legal ethics questions are serving essentially as their own lawyers. Just as when they give legal advice to a client on a legal question, lawyers must give themselves competent—preferably excellent—advice about what to do. This means employing the interpretive tools that courts and other authorities use to decide ethics questions. It also means trying to approach the question objectively, not putting a thumb on the client’s side of the scale.
Thankfully, not all lawyers encounter hard ethics issues often enough to develop expertise in resolving them. The professional conduct rules tell lawyers that, as a general matter, when they are not qualified to handle a legal problem, they may engage in self-study to acquire the necessary expertise or else seek help from an expert lawyer. Litigators researching ethics questions, including those implicating the duty of good faith and candor to the tribunal, will locate rules and statutes, treatises and articles, judicial decisions and bar association opinions. If published writings do not answer the precise question, they will at least offer general guidance.
Those who lack confidence in their own educated judgment may seek help from lawyers with greater experience and expertise in legal ethics. Lawyers working in private law firms and other law offices can often call on a colleague. To enable lawyers to obtain necessary assistance outside their own law offices, Model Rule 1.6(b)(4) authorizes them to disclose client confidences “to secure legal advice about the lawyer’s compliance with” the professional conduct rules. And some bar associations and grievance committees give lawyers help working through their ethics questions. For example, the Texas State Bar maintains a toll-free ethics help line staffed by disciplinary counsel able to answer callers’ questions and point them to relevant rules and sources.
Subordinate lawyers can take some comfort when they rely in good faith on a supervising lawyer’s resolution of a hard ethics question. Rule 5.2(b) provides: “A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” But the professional conduct rules do not offer similar comfort to lawyers who, resolving ethics questions for themselves, rely on their own reasonable resolutions of arguable questions of professional duty. I suggested recently that the professional conduct rules should be amended to exempt all lawyers from discipline when they reasonably resolve hard ethics questions. See Bruce Green, The Challenges and Rewards of Teaching Legal Ethics, 25 Prof. Law., no. 2, Nov. 2018.
Even without such a provision, courts and disciplinary authorities, in exercising their discretion, are unlikely to sanction lawyers as harshly, if at all, when they make good-faith errors of judgment about how to strike the right balance between their duties to the client and to the court. So, when considering whether to make a particular disclosure as a matter of good faith and candor to the court, it is important to come to a conclusion based on a genuine, reasonable effort to get the right answer.
Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).