Litigation & Advocacy · 10-16% of the exam
13.2.2Adverse controlling authority (Rule 3.3(a)(2))
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- A lawyer shall not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the client's position and not disclosed by opposing counsel (Model Rule 3.3(a)(2)).
Why
Adversarial briefing is supposed to surface the law that governs, but it only works if someone actually puts the governing case in front of the judge. Where both sides have an incentive to bury the one decision that controls, a court can rule in ignorance of binding law it was entitled to see.
Plain English
If you know of legal authority in the controlling jurisdiction that is directly adverse to your client's position and opposing counsel has not disclosed it, you must disclose it. Being able to distinguish the case does not excuse you — disclose first, then distinguish. If opposing counsel discloses it, your duty is eliminated. Adverse out-of-state authority in a state-law matter need not be disclosed.
Rule
A lawyer shall not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the client's position and not disclosed by opposing counsel (Model Rule 3.3(a)(2)).
"Controlling jurisdiction" is the jurisdiction whose law governs the dispute; the test is whether the authority comes from that jurisdiction, not the level of the court that issued it.
Adverse out-of-state cases in a state-law matter need not be disclosed.
If opposing counsel discloses the adverse authority, the duty is eliminated.
The disclosure duty applies even when the lawyer can reasonably distinguish the adverse case; disclose first, then distinguish. Artful distinction of adverse authority is permissible — concealment is not.
The adverse-authority duty doesn't lapse when briefing closes. Rule 3.3(c) extends it to the conclusion of the proceeding: a controlling case handed down after the briefs are filed must be disclosed as soon as the lawyer learns of it.
Example 1
Ex. 1
Farid represents a landlord in a state-court eviction. He finds a state supreme court ruling that supports the tenant's position, has a strong factual distinction prepared, and opposing counsel has not cited the decision.
Farid must cite the ruling and may then present his distinguishing argument. His ability to distinguish doesn't eliminate the duty to disclose; the court, not Farid, decides how much weight the precedent carries. Order Farid's two moves: the citation comes first, the distinction after it.
Trap
Tip
Questions · 1
Q 01ch13-e06
Question 1 of 1 · Rule 3.3(a)(2)
Attorney represented Landlord in a commercial-lease forfeiture trial governed by the law of the state where the case was filed. Researching the forfeiture clause, Attorney found a decision of that state's highest court holding squarely against Landlord's reading of such clauses. Attorney also found a decision of a neighboring state's high court reaching the opposite result. Attorney believes the adverse home-state decision can be distinguished on its facts and has that argument drafted. Opposing counsel's brief cited neither case. Attorney filed a brief that relied on the neighboring state's decision and made no mention of the home-state decision. Was it proper for Attorney to file the brief without citing that decision?
Keys 1 to 4 choose.