Can a lawyer deliberately not tell the court about binding authority so the court commits reversible error on appeal?

Plain-English summary

A criminal defense lawyer moves for a jury instruction citing case A. In later research the lawyer finds case B, which is non-distinguishable, binding on the court, and holds that failing to give the instruction is reversible error. The lawyer considers staying silent about case B so that if the court denies the motion, it will have committed reversible error usable on appeal. The lawyer also posts the contemplated strategy on an online lawyer discussion group.

The opinion calls this "sandbagging" and concludes it is improper. It applies Rule 8.4(d) (conduct prejudicial to the administration of justice), reasoning that lawyers owe a duty to assist the court in reaching correct conclusions; conduct intended to establish reversible error and force additional proceedings affects the outcome and prolongs resolution, which violates 8.4(d). The opinion also applies Rule 3.3(a)(1), reasoning that even though the cited authority supports the same result, the law the lawyer relies on is not an accurate statement of controlling law, the lawyer knows it, and the omission is designed to deceive the court, so failing to disclose case B violates the candor rule. The committee expressly limits this to knowing concealment, not a good-faith judgment that authority is distinguishable or inapplicable.

On the second question, the opinion concludes that lawyers who merely read the posting have no duty to report under Rule 8.3. Reporting under 8.3 is triggered by actual knowledge (Rule 1.0(f)), which the opinion describes, citing Skolnick v. Altheimer & Gray, as more than mere suspicion but less than absolute certainty. Reading a question about contemplated conduct does not give the reader knowledge that the conduct has occurred or will occur, and the committee adds that requiring reports would chill the use of these discussion groups.

In practice

Under this opinion, a lawyer who knows of controlling authority requiring a particular ruling may not strategically withhold it from the court to preserve reversible error; the opinion holds that doing so violates Rules 8.4(d) and 3.3(a)(1) as the Illinois rules stood at the time. The committee draws a line between this knowing concealment and a lawyer who does not cite authority because of a good-faith belief it is distinguishable or inapplicable, which the opinion does not reach. On reporting, the opinion holds that reading or responding to an ethics question posted on a discussion group does not, without more, give a lawyer the actual knowledge that triggers the Rule 8.3 reporting duty.

Common questions

Q: Can I stay silent about binding case law that hurts my motion to set up an appeal issue?

A: No. The opinion concludes that knowingly withholding controlling authority to manufacture reversible error violates Rule 8.4(d) and Rule 3.3(a)(1).

Q: What if I genuinely think the adverse case is distinguishable?

A: The committee expressly declined to opine on that situation; the opinion is limited to a lawyer who knows the authority is controlling and conceals it to deceive the court.

Q: If another lawyer describes this plan on a listserv, do I have to report them?

A: No. The opinion concludes that reading the post does not give you the actual knowledge Rule 8.3 requires, since whether the lawyer carries out the plan is speculation.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 3.3(a)(1) (candor toward the tribunal; no false statement of law or failure to correct one), Rule 8.4(d) (conduct prejudicial to the administration of justice), and Rule 8.3(a) (reporting another lawyer's violation of Rule 8.4(b) or (c)), along with the definition of "knowingly" in Rule 1.0(f). These correspond to Model Rules 3.3, 8.4, and 8.3.

Citations and references

Rules:

• Illinois RPC 3.3(a)(1) (MR 3.3): candor toward the tribunal
• Illinois RPC 8.4(d) (MR 8.4): conduct prejudicial to the administration of justice
• Illinois RPC 8.3(a) (MR 8.3): reporting professional misconduct
• Illinois RPC 1.0(f): definition of "knowingly"

Cases:

• In re Smith, 168 Ill. 2d 269 (1995), lawyer's duty to assist the court in administering justice
• In re Winthrop, 219 Ill. 2d 526 (2006), duty to correctly inform the court on the law
• In re Karavidas, 2013 IL 115767, effect on the outcome of a case under 8.4(d)
• Skolnick v. Altheimer & Gray, 191 Ill. 2d 214 (2000), the knowledge standard for Rule 8.3
• Walls v. Bowersox, 151 F.3d 827 (8th Cir. 1998), "sandbagging" criticized as unethical and poor strategy

Other opinions cited:

• ISBA Advisory Opinion 12-15: ethics of online discussion groups

See also

• ISBA Ethics Op. 13-05: Client's Submission of False Evidence to a Tribunal
• ISBA Ethics Op. 12-15: Use of Listservs or Online Discussion Groups
• ABA Formal Op. 98-412: Disclosure When a Client Violates a Court Order
• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer

Source

• Landing page: https://www.isba.org/ethics/opinions/1602