April 19, 2023 – In SCR 20:3.3(a)(2), what, precisely, is “directly adverse” authority and how “adverse” does it have to be?

Question

I am representing a client in a litigated matter. The judge asked both parties to file briefs regarding an issue raised in a motion filed by the opposing counsel.

In researching the issue, I found a court of appeals case that appears to support opposing party’s position on the issue, but I think I have a pretty good argument to distinguish the case. To this point, opposing counsel has not brought the case to the court’s attention.

I know lawyers have a duty to bring adverse authority to the attention of the court, but is the authority really adverse if I have a good faith argument that it is distinguishable?

Answer

SCR 20:3.3 states, in relevant part:

(a) A lawyer shall not knowingly:

(2) 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;

The accompanying ABA Comment states:

[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Thus, neither the rule nor the comment define precisely what is meant by “directly adverse.” Case law from other jurisdictions provides helpful guidance. In one oft cited case, Tyler v. State 47 P.3d 1095 (Alaska 2001), the Alaska court of appeals confronted this issue directly:

Although we accept Mr. Cyrus's assertion that he honestly and reasonably believed that McGhee could be distinguished from Tyler's case, Mr. Cyrus does not contend that he was unaware of McGhee's potential importance to the decision of Tyler's appeal. McGhee was the only Alaska appellate decision that discussed, or came close to discussing, the issue that Mr. Cyrus knew would determine the validity of Tyler's Cooksey plea. And the result in McGhee was the opposite of the result advocated by Mr. Cyrus in Tyler's case.

Mr. Cyrus knew that McGhee could reasonably be interpreted as rejecting or casting substantial doubt on his position. McGhee was therefore “directly adverse” authority for purposes of Professional Conduct Rule 3.3(a)(3), and Mr. Cyrus was obligated to bring McGhee to our attention when he realized that the State had not cited it. Mr. Cyrus failed in that duty.

The Tyler court ​also cited approvingly ABA Formal Ethics Opinion 84-1505 (1984), quoting it as follows:

Rule 3.3(a)(3)​ of the Model Rules of Professional Conduct provides, "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." This provision is virtually identical to its predecessor, DR 7-106(B)(1) of the Model Code of Professional Responsibility. Both provisions continue essentially unchanged the theme of Canon 22 of the Canons of Professional Ethics adopted by the American Bar Association in 1908.

Under Canon 22, this Committee issued two opinions bearing on the question presented. In 1935 the Committee decided that a lawyer has a duty to tell the court in a pending case of decisions, unknown to his adversary, that are adverse to his client's contentions. We said, "He may, of course, after doing so, challenge the soundness of the decisions or present reasons which he believes would warrant the court in not following them in the pending case." In 1949, the Committee, in Formal Opinion 280, first interpreted Opinion 146 to limit the duty of disclosure to only those decisions which were "directly adverse." We then continued:

We would not confine the Opinion to "controlling authorities"—i.e., those decisive of the pending case—but ... would apply it to a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case.

Sometimes lawyers mistakenly believe that the disclosure required by this rule only covers “controlling authority,” which seems to be interpreted as authority that is precisely on point and unequivocally adverse to the client’s position – essentially authority that renders the lawyer’s position frivolous.

That, however is neither what the rule says nor how it is interpreted by courts.

Any authority in the controlling jurisdiction that could reasonably be interpreted as adverse will be covered by the rule, even if the lawyer has a good faith basis to argue that the authority is distinguishable.

In fact, competent representation requires the lawyer to make such good faith arguments to distinguish adverse authority once the lawyer has fulfilled their professional obligation to disclose it to the tribunal.

But the lawyer’s obligation to the tribunal requires that the lawyer bring it to the attention of the court.