Briefing,  Ethics

Failure to Address Contrary Authority Again Draws Fire

Last week, we saw a government lawyer scolded by the Ninth Circuit for making an argument directly contrary to controlling authority without even trying to argue around that authority and without even citing it.  This week, it’s the California Court of Appeal’s turn, in a slightly different context. 

Yesterday, Tom Caso at The Opening Brief posted about Batt v. City and County of San Francisco, case no. A114633 (1st Dist. Sept. 12, 2007), in which he says the court “suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ‘clearly are pertinent to any meaningful discussion of the issue.'”  Interestingly, this case is much different from the federal case profiled last week.  Here, the attorney is scolded not for withholding authority, but merely failing to address a controlling authority briefed by the other side.

I don’t agree with the court’s rationale regarding ethics.  The court relies on Rule 5-200 of the Rules of Professional Conduct:

In presenting a matter to a tribunal, a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.

Failing to address authorities openly cited by your adversary does not strike me as dishonest, misleading, an artifice, a misquotation, or citation of an invalid authority.  Likewise, I think the court was wrong to cite ABA Model Rule 3.3, which prohibits a lawyer from making a false statement of law or from failing “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.” (Emphasis added.)

Here, the cases the party ignored were cited by the other party and discussed extensively in the other party’s briefs.  Nobody concealed anything, except in the sense, perhaps, that by not discussing the adverse authority, the attorney was hoping the court would overlook it.

Whatever the ethics, sticking your head in the sand as soon as your opponent cites adverse authority obviously isn’t smart, as Tom notes in greater detail (along with providing some of the court’s ethics rationale) at his post.