Lawyers Must Cite the Law Correctly–And Disclose Adverse Authority
LAWYERS MUST DISCLOSE KNOWN & CONTROLLING LEGAL AUTHORITY
A lawyer’s duty of candor includes both positive and negative duties relating to legal authority.
When presenting arguments and evidence to a court or other tribunal:
A lawyer must:
- Use only means that are consistent with the truth (California Business & Professions Code Section 6068(d))
- Disclose when the authority cited in support or defense of the client’s position is not, or is no longer controlling
- For example, if the California or U.S. Supreme Court has granted a rehearing in the relevant case, but not yet issued a decision
- For example, if the case has been distinguished by, or overturned in, later proceedings or another controlling case
And a lawyer must not:
- Knowingly misquote any law, legal decision, or other authority.
- Fail to disclose known legal authority in a controlling jurisdiction (meaning authority the court must follow) that is adverse to the client’s arguments or position, if opposing counsel does not disclose it
- Note that the lawyer may–and usually should–then go on to explain or argue why those authorities are distinguishable, or should not control in the client’s specific circumstances.
- Use omissions and ellipses in an “artful” manner to make it look as if a court or decision (or a law) says or means something different than it actually does
- Cite unpublished or depublished cases as controlling authority.
- In some situations, lawyers can cite unpublished opinions, but not as controlling authority, and even this can’t be done in every case
HOWEVER: LAWYERS ARE NOT PERSONALLY BOUND BY THE CLIENT’S ARGUMENTS
It’s important to note that although an attorney must represent the client zealously, a lawyer is not personally bound by, or forced to agree with or defend, the client’s arguments outside of the relevant representation. Unless prevented from doing so by a retainer agreement (or other binding contract), applicable law, or the ethics rules, a lawyer can make inconsistent–or even opposite–arguments when representing a different client in a different proceeding.
In addition, if sued by a client (for malpractice or otherwise), a lawyer can argue that the claims (s)he made on the client’s behalf in the underlying litigation were worthless or without foundation. While this may (or may not) potentially create other issues (and other liability), this type of argument is not unethical or prohibited in and of itself.
HOW DO YOU KNOW IF A LAWYER BREACHED THIS DUTY?
It can be difficult–especially for non-lawyers–to know if a lawyer has breached the duty to disclose adverse authority. This is true both because most clients are not familiar with the law (or the large volume of court rulings in any given area), and because a lawyer is not obligated to disclose authority that opposing counsel brings to the court’s attention.
However, another lawyer with experience in the relevant area of law may be able to determine whether a lawyer failed to comply with the duty to disclose.
It’s often easier to tell when a lawyer misquotes the law, or cites an authority that has been overruled or otherwise compromised. Opposing counsel is often quick to point out these types of omissions–or should be, anyway.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.