How does a North Carolina lawyer determine whether adverse authority from a lateral or lower court must be disclosed under Rule 3.3(a)(2)?

Plain-English summary

The opinion answers a single question: whether a lawyer's duty under Rule 3.3(a)(2) to disclose directly adverse legal authority requires informing the tribunal of rulings entered in lateral and lower courts. Rule 3.3(a)(2) bars a lawyer from knowingly 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."

The opinion concludes that the lawyer's duty is to disclose legal authority that is controlling as to that tribunal, and that the lawyer must make a legal determination of what authority controls for the particular tribunal. The committee anchors this in the comments to Rule 3.3, which speak of "pertinent legal authorities" and "legal premises properly applicable" to the case, and in the rule's purpose of avoiding conduct that undermines the integrity of the adjudicative process, consistent with stare decisis.

The opinion makes two further points. First, the disclosure duty is not limited to court decisions: it covers statutes and regulations adverse to the client's position as well. Second, the lawyer is not required to disclose authority that is not controlling. The opinion leaves the determination of what controls for a particular tribunal to the lawyer. The lawyer's knowledge of the adverse authority may be inferred from the circumstances under Rule 1.0(g).

In practice

Under the North Carolina rule as it stood at the time of the opinion, the disclosure obligation in Rule 3.3(a)(2) attaches to authority that is controlling as to the tribunal hearing the matter, is directly adverse to the client's position, is known to the lawyer, and is not disclosed by opposing counsel. The opinion holds that the lawyer must make a legal determination of what authority controls for that tribunal, and that the duty extends to adverse statutes and regulations, not just case law.

The opinion concludes that authority which is not controlling need not be disclosed under the rule. The lawyer must determine whether a particular authority controls for the tribunal. Per the opinion, the lawyer's knowledge may be inferred from the circumstances (Rule 1.0(g)), so a lawyer cannot avoid the duty by claiming ignorance the circumstances belie.

Common questions

Q: How does the lawyer decide whether an adverse lower or lateral court decision must be disclosed?

A: The lawyer must make a legal determination of what controls for the particular tribunal. The opinion requires disclosure of known, directly adverse controlling authority that opposing counsel has not disclosed; noncontrolling authority need not be disclosed.

Q: Who decides whether authority is "controlling" for the tribunal?

A: The lawyer. The opinion states the lawyer "must make a legal determination as to the legal authority that is controlling for the particular tribunal."

Q: Does the disclosure duty cover statutes and regulations, or only court decisions?

A: It covers both. The opinion states the disclosure duty "covers not only court decisions, but also statutes and regulations adverse to a client's position."

Q: Can a lawyer avoid the duty by claiming not to know about the adverse authority?

A: Not necessarily. The opinion notes, citing Rule 1.0(g), that the lawyer's knowledge of the adverse authority "may be inferred from the circumstances."

Background and rules framework

The opinion interprets Rule 3.3 (Model Rule 3.3, candor toward the tribunal), specifically Rule 3.3(a)(2), which prohibits knowingly failing to disclose to the tribunal legal authority in the controlling jurisdiction that is directly adverse to the client's position and not disclosed by opposing counsel. The opinion relies on comment [2] (lawyers as officers of the court must avoid conduct undermining the integrity of the adjudicative process) and comment [4] (a lawyer must not let the tribunal be misled by false statements of law and "must recognize the existence of pertinent legal authorities").

The opinion also applies Rule 1.0(g) (Model Rule 1.0, terminology), under which a person's knowledge may be inferred from the circumstances, to the question of whether the lawyer "knows" of the adverse authority.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 / NC Rule 3.3(a)(2) and cmts. [2], [4] (candor toward the tribunal; duty to disclose controlling adverse legal authority)
• Model Rule 1.0 / NC Rule 1.0(g) (knowledge may be inferred from the circumstances)

See also

• Colorado Bar Op. 123: Candor to the Tribunal in Civil Cases
• ABA Formal Op. 93-376: Client Lies in Discovery
• Alaska Bar Op. 2022-2: Client False Statements to the Court

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2018-formal-ethics-opinion-2/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Rule 3.3(a)(2) provides that 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.”

Does the duty of disclosure set out in Rule 3.3(a)(2) require a lawyer to inform the tribunal of rulings entered in lateral and lower courts?

Opinion:

Pursuant to Rule 3.3(a)(2), the lawyer’s duty is to disclose to the tribunal legal authority that is controlling as to that tribunal. The lawyer must make a legal determination as to the legal authority that is controlling for the particular tribunal.

Rule 3.3, Candor Toward the Tribunal, sets forth the duties of lawyers as officers of the court “to avoid conduct that undermines the integrity of the adjudicative process.” Rule 3.3, cmt. [2]. Preserving the integrity of the adjudicative process is consistent with the principle of stare decisis.

As an officer of the court, a lawyer has a duty to assist the tribunal in fulfilling its duty to apply the law fairly and properly. Therefore, a lawyer must not allow the tribunal to be misled by false statements of law and “must recognize the existence of pertinent legal authorities.” Rule 3.3, cmt. [4]. As explained in Rule 3.3, cmt. [4], the “underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.”

The comments to Rule 3.3 reference “pertinent legal authorities” and “legal premises properly applicable” to the case. These phrases indicate that the lawyer’s duty is to disclose to the tribunal legal authority that is controlling as to that tribunal. The disclosure duty covers not only court decisions, but also statutes and regulations adverse to a client’s position. A lawyer is not required to inform the tribunal of authority that is not controlling.

Pursuant to Rule 3.3(a)(2), a lawyer has a duty to disclose to a tribunal considering a matter legal authority that is controlling as to the tribunal if the authority is directly adverse to the position of the lawyer’s client, is known to the lawyer, and is not disclosed by opposing counsel. The lawyer’s knowledge of the adverse authority may be inferred from the circumstances. See Rule 1.0(g).