Ezel / Ethics Opinions / WISBAR
WISBAR 1994

When does a lawyer's duty to tell the court about directly adverse controlling authority end?

Short answer: The opinion concluded that the duty under SCR 20:3.3(a)(3) to disclose directly adverse legal authority from the controlling jurisdiction continues until disclosure would no longer be useful to the tribunal, that is, until there is no further opportunity for a legally well-informed decision in the matter. The committee noted that Wisconsin's SCR 20:3.3, unlike the Model Rule, did not provide that duties under the rule terminate at the conclusion of the proceeding, and pointed to factors such as whether an appeal has been taken and whether relief from judgment under Wis. Stat. § 806.07 is available.

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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.

Currency note: this opinion is from 1994
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

Opinion E-94-1 (1994) addressed when a lawyer's duty to inform the court of adverse authority from the controlling jurisdiction terminates. The committee began with SCR 20:3.3(a)(3), under which 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 client's position and not disclosed by opposing counsel. As the committee noted, the purpose of the requirement is to permit discussion of the legal premises properly applicable to the case.

The committee observed that, unlike its Model Rule counterpart, Wisconsin's SCR 20:3.3 did not provide that duties under the rule terminate at the conclusion of the proceeding. It noted that SCR 20:3.3(a) and MR 3.3(a) impose several duties, including the general prohibition on participating in fraud on a tribunal and the duty to take reasonable remedial measures upon later learning that material evidence previously offered was false.

Because the rule's text gave no specific guidance on duration, the committee concluded that the duty to disclose adverse authority continues until disclosure would no longer be useful to the tribunal. The rule's purpose is to prevent or correct legal errors by the tribunal, so when there is no further opportunity to reach a legally well-informed decision, the disclosure requirement serves no practical purpose and should be given no further effect. The committee identified relevant factors, including whether an appeal has been taken and whether relief from a judgment or order is available under Wis. Stat. § 806.07. It drew a parallel to the remedial-measures duty in SCR 20:3.3(a)(4): if disclosure can serve no remedial purpose, no duty arises, but if some remedial purpose may be served, the duty to disclose applies.

Currency note

This opinion was issued in 1994, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). SCR 20:3.3 (candor toward the tribunal) was restructured in that revision, including the provisions on when duties under the rule end. Subsequent rule amendments or 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: When did the duty to disclose adverse controlling authority end under this opinion?

A: The committee concluded it continues until disclosure would no longer be useful to the tribunal, that is, until there is no further opportunity to reach a legally well-informed decision in the matter.

Q: Did the duty stop automatically at the end of the proceeding?

A: Not under the Wisconsin rule as it then stood. The committee noted that, unlike the Model Rule, SCR 20:3.3 did not state that duties under the rule terminate at the conclusion of the proceeding, so it tied the duty's end to whether disclosure could still aid the tribunal.

Q: What factors decided whether the duty was still ongoing?

A: The committee pointed to whether an appeal had been taken and whether relief from a court's judgment or order was available under Wis. Stat. § 806.07; as long as a decision applying controlling authority could still be reached, the duty applied.

Background and rules framework

The opinion interprets SCR 20:3.3 / Model Rule 3.3 (candor toward the tribunal), specifically the duty in SCR 20:3.3(a)(3) to disclose directly adverse controlling legal authority and the remedial-measures duty in SCR 20:3.3(a)(4). The committee emphasized a then-existing difference between the Wisconsin rule and the Model Rule on when duties under Rule 3.3 terminate.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:3.3(a)(3), 20:3.3(a)(4) / Model Rule 3.3 (candor toward the tribunal)

Statutes:

  • Wis. Stat. § 806.07 (relief from judgment or order)

See also

Source

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