Can a lawyer cite an unpublished, 'not for publication' opinion to a court, when the forum court has a rule prohibiting any reference to such opinions?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee addressed whether a lawyer may cite to a court an unpublished opinion when the forum court has a rule barring any reference in briefs to opinions marked "not for publication," an issue made more pressing because such opinions were by then widely available on WESTLAW and LEXIS. It noted that courts with such rules enforce them, refusing to consider improperly cited unreported cases, rejecting "creative" attempts to circumvent the ban, and in some cases imposing sanctions or ordering entire briefs discarded.
The committee located the ethical analysis in Rule 3.4(c), which bars a lawyer from "knowingly disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." It concluded that "[w]here, then, a court's rule of procedure contains a specific prohibition against citing an unpublished opinion, a lawyer who does so in that form violates Rule 3.4." It added that a lawyer in such a jurisdiction may ask the court's permission to cite an unpublished case, but "until such permission has been expressly granted, the lawyer should scrupulously refrain from actually presenting the unpublished decision to that court."
On the other side, the committee held there is no violation when a lawyer cites an unpublished opinion in a jurisdiction without such a ban, even if the issuing court stamped it "Not For Publication," provided the lawyer informs the court of that limitation. Reasoning that court rules prohibiting citation of unpublished opinions, like other procedural rules, are presumed to govern only proceedings in the jurisdiction that issued them, the committee concluded that citing such an opinion in a different jurisdiction does not violate Rule 3.4(c). (The published opinion is a revision, dated October 15, 1995, of the version first issued August 6, 1994, clarifying the cross-jurisdiction point.)
Currency note
This opinion was issued in 1994 (and revised in 1995), before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, and before the 2007 adoption of Federal Rule of Appellate Procedure 32.1, which changed the landscape for citing unpublished federal opinions. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer cite an unpublished opinion if the court's rules forbid it?
A: No. The opinion concluded that citing an unpublished opinion to a court whose rules specifically prohibit it violates Rule 3.4(c)'s bar on knowingly disobeying an obligation under the tribunal's rules.
Q: Is there any way to use such an opinion in a court that bans them?
A: The committee said a lawyer may ask the court's permission to cite an unpublished case, but must refrain from presenting it until permission is expressly granted.
Q: What if the lawyer practices where there is no such ban?
A: The opinion held there is no violation in citing an unpublished opinion in a jurisdiction without a ban, even one stamped "not for publication" elsewhere, so long as the lawyer discloses that the issuing court placed that limitation on it.
Q: Does a "not for publication" stamp from one court bind courts in other states?
A: No. The committee reasoned that such rules are presumed to govern only the issuing jurisdiction's proceedings, so citing the opinion elsewhere does not violate Rule 3.4(c).
Background and rules framework
The opinion interpreted Rule 3.4 (fairness to opposing party and counsel), specifically subsection (c)'s prohibition on knowingly disobeying an obligation under the rules of a tribunal, and tied the ethical result to the existence and reach of the forum court's no-citation rule. It noted the predecessor DR 7-106(A) and DR 7-106(C)(7) of the Model Code as analogues. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 3.4 (fairness to opposing party and counsel; subsection (c))
Cases:
- United States v. Roberts, 844 F.2d 537 (8th Cir. 1988), court refused to consider an improperly cited unreported case
- O'Hair v. Board of Education, 805 P.2d 40 (Kan. Ct. App. 1990), rejecting attempts to circumvent a no-citation rule
- Heil v. Lesch, 430 N.W.2d 381 (Wis. Ct. App. 1988), sanctions for citing an unpublished opinion in violation of a rule
See also
- ABA Formal Op. 93-378: Ex parte contacts with expert witnesses
- ABA Formal Op. 93-376: A client who lies in response to discovery requests
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 94-386.pdf
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