Duty to Disclose Adverse Legal Authority
Adopted: July 27, 2018
Opinion rules that a lawyer has a duty to disclose to a tribunal adverse legal authority that is controlling as to that tribunal if the legal authority is known to the lawyer and is not disclosed by opposing counsel.
Inquiry:
Rule 3.3(a)(2) provides 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.”
Does the duty of disclosure set out in Rule 3.3(a)(2) require a lawyer to inform the tribunal of rulings entered in lateral and lower courts?
Opinion:
Pursuant to Rule 3.3(a)(2), the lawyer’s duty is to disclose to the tribunal legal authority that is controlling as to that tribunal. The lawyer must make a legal determination as to the legal authority that is controlling for the particular tribunal.
Rule 3.3, Candor Toward the Tribunal, sets forth the duties of lawyers as officers of the court “to avoid conduct that undermines the integrity of the adjudicative process.” Rule 3.3, cmt. [2]. Preserving the integrity of the adjudicative process is consistent with the principle of stare decisis.
As an officer of the court, a lawyer has a duty to assist the tribunal in fulfilling its duty to apply the law fairly and properly. Therefore, a lawyer must not allow the tribunal to be misled by false statements of law and “must recognize the existence of pertinent legal authorities.” Rule 3.3, cmt. [4]. As explained in Rule 3.3, cmt. [4], the “underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.”
The comments to Rule 3.3 reference “pertinent legal authorities” and “legal premises properly applicable” to the case. These phrases indicate that the lawyer’s duty is to disclose to the tribunal legal authority that is controlling as to that tribunal. The disclosure duty covers not only court decisions, but also statutes and regulations adverse to a client’s position. A lawyer is not required to inform the tribunal of authority that is not controlling.
Pursuant to Rule 3.3(a)(2), a lawyer has a duty to disclose to a tribunal considering a matter legal authority that is controlling as to the tribunal if the authority is directly adverse to the position of the lawyer’s client, is known to the lawyer, and is not disclosed by opposing counsel. The lawyer’s knowledge of the adverse authority may be inferred from the circumstances. See Rule 1.0(g).