Adverse Controlling Authority

Every litigator eventually finds the decision that sinks the argument and then notices that the other side has missed it. Rule 3.3(a)(2) governs that moment. It forbids a lawyer to 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.”¹ The false-statement clauses tell a lawyer what never to say to a judge; this clause tells the lawyer what must be said even though it hurts the client.

The comment explains the demand. It describes legal argument as “a discussion seeking to determine the legal premises properly applicable to the case,” so the lawyer need not offer “a disinterested exposition of the law” but “must recognize the existence of pertinent legal authorities.”² Courts have little patience with the alternative. In Gonzalez-Servin v. Ford Motor Co., Judge Posner described counsel’s conduct as “the ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist.”³

The same duty appears under different paragraph numbers. The 1984 version of Rule 3.3, reproduced in a footnote to McCoy v. Court of Appeals of Wisconsin, lists the adverse-authority duty at (a)(3), because paragraph (a)(2) then addressed disclosing a material fact to avoid assisting a criminal or fraudulent act by the client.⁴ A decision that quotes the 1984 text therefore cites (a)(3). The obligation is the same.

The clause has four working parts. The authority must come from the controlling jurisdiction, it must be directly adverse to the client’s position, the lawyer must know of it, and opposing counsel must not already have disclosed it. Knowledge was covered earlier in this chapter. The subsections below take up the source of the authority, the meaning of “directly adverse,” the party to whom disclosure runs, and what a lawyer may still do about the authority once it is disclosed. The first question is which courts’ decisions count at all.

Controlling Jurisdiction

The first limit on the duty is the source of the adverse decision. The rule reaches only “legal authority in the controlling jurisdiction,”⁵ so of all the unfavorable decisions a lawyer may know about, only those from the jurisdiction whose law the tribunal applies fall inside the duty. The short version says that binding authority must be disclosed. That version is the right starting point and a poor stopping point.

Decisions that bind the deciding court plainly count. In a federal court of appeals, a Supreme Court decision directly adverse to the client’s position must be disclosed, and the same reasoning applies to a prior panel decision of the same circuit.⁶ Amoco Oil Co. v. United States shows how courts react when counsel looks away from such precedent. The Federal Circuit observed that, even recognizing that en banc rehearing or Supreme Court review was theoretically possible, counsel could have moved to stay the appeal or could have cited the Carnival decision frankly in the opening brief, with plausible grounds for distinguishing it. Ignoring such precedent and raising new issues in a reply brief, the court said, “are not acceptable.”⁷ A lawyer who holds a decision that defeats the client has every reason to hope the opponent overlooks it, and the rule is written to remove that hope.

Binding authority marks the baseline and not the boundary. As Professors Rotunda and Dzienkowski stress, the rule does not speak of “controlling authorities” but refers more broadly to “legal authority in the controlling jurisdiction,”⁸ meaning the codified and judicial sources that carry governing authority where the tribunal sits. Suppose a federal appeal turns on an unsettled question of Virginia law, and an intermediate Virginia appellate court has decided that question against the client. The decision does not bind the federal court the way a Virginia Supreme Court ruling would. It still enters into the federal court’s task, under Erie R. Co. v. Tompkins, of predicting how the state’s highest court would decide, and disclosing it helps the court decide whether to certify the question to the Virginia Supreme Court.⁹ The lawyer who omits it leaves a court that must predict state law without what the state’s own appellate courts have said.

Authority from outside the jurisdiction falls on the other side of the line. In a Second Circuit appeal construing a federal statute, a lawyer who knows of a Fourth Circuit decision reading the statute against the client has no duty to cite it, because the decision is not “legal authority in the controlling jurisdiction.”¹⁰ Both that decision and the Virginia decision come from a court other than the one deciding the appeal. The Virginia court, though, speaks to the law that governs the question, while the Fourth Circuit does not speak for the Second.

Citing the out-of-circuit decision may still be the wiser course. Federal courts of appeals facing a federal question in the first instance look to their sibling courts, and if the opponent does not find the decision, the judges and their clerks will; a lawyer who cites it can also address the flaws in its reasoning.¹¹ The rule demands disclosure only of authority from the controlling jurisdiction, but acknowledging persuasive authority the court is likely to uncover is often wise strategy.¹²

The hypothetical also shows that the source requirement is not limited to judicial opinions: a statute of the controlling jurisdiction is authority too. What matters is where the law governs, and the outside decision’s resemblance to the client’s case does not change that.

A decision that clears this step must still be directly adverse, known to the lawyer, and undisclosed by the opponent, and the later subsections take up those elements.

Directly Adverse Authority

The rule limits the duty a second time, with the adverb directly: the authority must be “directly adverse to the position of the client.”¹⁴ The previous subsection asked where the authority comes from; this one asks how closely it must bear on the client’s position. “Directly” separates the decision that speaks to the client’s position itself from the decision that reaches it, if at all, through an analogy the lawyer would have to build.

The standard is adversity, not decisiveness. The question is whether the authority is directly adverse to the client’s position and not whether it actually decides the case.¹⁵ A decision can apply on its face and still invite a good argument that it is distinguishable, limited to its facts, or wrongly decided. That argument is a reason to cite the decision and then make the argument, because the court decides whether it succeeds. If confidence in a distinction excused silence, the duty would turn on the lawyer’s forecast of the result, and a lawyer facing a damaging decision always has reason to forecast that it will not matter.

Professors Hazard and Hodes and attorney Peter Jarvis, relying on an early ethics opinion, offer a practical gauge. They ask whether the omitted authorities “would be considered important by the judge sitting on the case,” or whether the judge might consider himself “misled” if he remained unaware of them.¹⁶ The gauge views the omission from the bench, which fits the duty’s purpose: the court should not rule on a legal premise that a lawyer who knew better left incomplete.

Petrov’s belief that he can distinguish the decision answers a question about the merits of his argument. The disclosure question was settled by how directly the decision reaches his claim, so an exam stem that says the lawyer thought the authority distinguishable has not yet said anything that excuses silence.

The opposite pole is authority that sits near the client’s position without reaching it.

Both decisions come from the controlling jurisdiction, so the source requirement is met each time. What moves the answer is the distance between the authority and the client’s position. Petrov’s decision reaches his claim directly, while Lindqvist’s reaches hers only through an analogy that someone must construct. As a rule of thumb, a lawyer who must argue that a decision is adverse is usually outside the rule, and a lawyer who must argue that it is merely distinguishable is usually inside it.

Disclosure must also be accurate. Lawyers go wrong in handling authority by paraphrasing holdings misleadingly, cropping quotations from cited cases, copying quotations without checking the original, and failing to indicate a decision’s subsequent history, such as a later reversal or overruling.¹⁷ A lawyer who cites an adverse decision but knowingly misdescribes it has made the kind of misrepresentation of law that Rule 3.3(a)(1) forbids.¹⁸ Citing a decision does not cure a distorted account of it.

The rule sets a minimum, and good practice goes further. Judge Mark Drummond advises lawyers to disclose even arguably adverse authority, because “nothing is more impressive than the advocate who comes into court” citing adverse as well as favorable decisions; the forthright lawyer gains credibility with the court and signals little concern about apparently negative authority.¹⁹ That advice belongs to professionalism, which reflects higher aspirations than the minimum standard of conduct the ethics rules set.²⁰ The two belong in separate parts of an exam answer. A lawyer who omits an arguably adverse decision has fallen short of good practice and has not necessarily violated Rule 3.3(a)(2), whereas a lawyer who knowingly omits a decision that speaks directly to the client’s position has violated it, whatever the lawyer thought of its chances.

Disclosure Owed to the Court

Two phrases in the rule settle whom the duty serves and when it applies: the lawyer must disclose the authority “to the tribunal,” and the duty reaches only authority “not disclosed by opposing counsel.”²² The first phrase names the court as the party owed disclosure. The second says when the opponent’s own briefing relieves the lawyer.

The court is the party owed because it decides on the legal premises the lawyers bring forward. The comment describes legal argument as a discussion seeking to determine the legal premises properly applicable to the case,²³ so when the one lawyer who knows of a controlling decision stays silent and the opponent misses it, the ruling may rest on a premise that nobody in the courtroom tested. A lawyer meets the duty by putting the authority in the filing or argument the court receives. Opposing counsel learns of it incidentally, because filings are served on the other side.

The second phrase limits the duty from the other direction. When opposing counsel has already put the authority before the court, the court has it, and the text no longer calls for the lawyer to disclose it. Appellate-practice commentary adds that the better course, as a matter of professionalism and sound practice, is for the lawyer to identify the authority, distinguish it or call for its limiting or overruling, and, if all else fails, try to preserve a challenge for review in a higher court.²⁴

The phrase “not disclosed” is best read as a question about the record when the lawyer files or argues. If the opponent has not cited the authority by then, the duty applies, and a lawyer who knowingly files without it commits the omission at that point. An opponent’s later citation tells the court what the lawyer left out; it does not change what the lawyer did. Any other reading would let a lawyer hold a damaging decision, bet that the other side would miss it, and lose nothing if the bet failed.

Courts reinforce the duty by refusing to let counsel’s silence control the outcome. In Patterson v. Patterson, the court confronted a controlling statute that had not been raised in the district court. It observed that the failure to raise the statute there could appropriately be assigned to counsel for both parties, and it reasoned that refusing to apply the statute “could incentivize attorneys to disregard their ethical obligation to point out controlling adverse authority.”²⁵ The practical lesson is that silence buys little, because a court may supply the law itself.

A result obtained by improper means is also exposed after the fact. In O’Darling v. O’Darling, the court said a trial court has power to vacate a decree when the successful party acted improperly to obtain it or the decree was irregularly obtained, and it found that such actions were shown on the facts. It nonetheless held that the trial court erred by dismissing the petition for dissolution of marriage without giving the petitioner notice and a right to be heard.²⁶

Disclosing Without Surrendering

The rule’s verb is disclose, and disclosure is not concession. A lawyer may 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,”²⁸ but nothing in that sentence requires the lawyer to agree that the authority is correct, to concede that it governs the client’s facts, or to abandon the client’s position. One formulation captures both halves: the lawyer has an affirmative duty to volunteer binding authority even when it contravenes the lawyer’s position, and “[f]ailure to acknowledge controlling authority, even in—perhaps especially in—a quest to overturn or modify that precedent is not ‘zealous advocacy,’ nor is it merely intellectual dishonesty; it is instead a failure to satisfy the minimum ethical standards for attorneys in this state.”²⁹ The duty to acknowledge and the freedom to attack the authority therefore coexist, and the attack begins with the citation. Where the law is uncertain, the lawyer may offer any argument that is not frivolous.³⁰

The comment draws the same balance. An advocate in an adversary proceeding need not present a disinterested exposition of the law, but may not allow the tribunal to be misled.³¹ The sensible sequence is to identify the authority, distinguish it or call for its limiting or overruling, and, if all else fails, try to preserve the challenge for review in a higher court.³²

That sequence appears in a Rule 11 dispute involving the lawyer Ms. Hunter. She acknowledged contrary authority, the court’s own earlier Austin decision, and argued against it on the basis of one of the Supreme Court’s prior conflicting decisions. The court said that under Rule 11(b)(2) she was “plainly entitled (and probably obligated)” to maintain that Austin was incorrectly decided. She could expect the district court to adhere to Austin, but she could also contemplate asking the court of appeals, en banc, to correct the error and, if unsuccessful, seeking Supreme Court relief on the basis of the circuit split.³³ That is disclosure followed by a fight on the merits of the authority, and the duty of candor leaves room for it.

Amoco marks the opposite pole. The court identified two ways counsel could have confronted the Carnival decision instead of ignoring it: a motion to stay the appeal, or a frank citation in the opening brief together with plausible grounds for distinguishing the case.³⁴ The second is the compliant advocate’s course, because the decision is cited and contested in the same brief. The posture the court rejected is the one Judge Posner called ostrich-like.³⁵ Hiding the decision buys little, since the opponent, the judges, or their clerks will probably find it, and it forfeits what the forthright lawyer gains: credibility with the court and the signal that the apparently negative authority is not a worry.³⁶

Hypothetical Illustration

Okonkwo, appealing for a landlord, knows that a prior panel decision of the same circuit holds a lease clause like her client’s unenforceable, and the tenant’s brief never mentions it. Her opening brief cites the decision by name and describes its holding accurately. It argues that the lease in that case lacked a feature present here, argues in the alternative that the decision’s reasoning conflicts with a later Supreme Court decision, and says the point is raised to preserve it for rehearing en banc. Pellegrino, in a parallel appeal on the same question, knows the same decision and files a brief that argues the landlord’s position as though the decision did not exist, planning to distinguish it only if the tenant cites it. Okonkwo has satisfied the rule and advocated hard, and Pellegrino has violated it.

Both lawyers hold the same unwelcome decision, and both believe they can distinguish it. What separates them is whether the court hears about the decision from the lawyer who knew of it. Pellegrino’s plan to distinguish the decision if the opponent raises it does not excuse the omission, because the duty is measured when he files, and confidence in the merits of a distinction is not a reason to keep directly adverse authority from the court.

The freedom to argue against disclosed authority has two limits. The first is accuracy: a lawyer who cites an adverse case may not paraphrase its holding misleadingly, crop its quotations, or omit its subsequent history,³⁷ and may not knowingly misrepresent the force of the law.³⁸ The second is reasonableness: the arguments must be ones the lawyer may properly make. A lawyer who cites the decision and then argues it away complies. A lawyer who stays silent and plans to distinguish it only if the opponent raises it violates the rule.