Can a Washington lawyer cite an unpublished Court of Appeals opinion to a trial court as precedential authority?

Plain-English summary

The inquirer asked whether it violates the Rules of Professional Conduct to cite an unpublished opinion of the Washington Court of Appeals to a trial court as precedential authority, given the prohibition in RAP 10.4(h). The committee narrowed the question to the inquirer's own proposed conduct, noting it does not opine on the conduct of other lawyers, and it declined to decide whether RAP 10.4(h) itself bars the citation, because that is a question of law.

On the professional-responsibility question, the committee said citing an unpublished opinion appears not to result in a per se violation of the RPCs. It added that citations to such authorities should be made only after consideration of RPC 3.1 (meritorious claims and contentions) and RPC 3.4(c) (not knowingly disobeying an obligation under the rules of a tribunal).

Currency note

This opinion was issued in 2004, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee did not treat the act of citing an unpublished opinion as itself a disciplinary violation. It tied the analysis to two rules: RPC 3.1, which requires a basis in law and fact that is not frivolous, and RPC 3.4(c), which addresses knowingly disobeying a tribunal's rules. The committee left the underlying legal question, whether RAP 10.4(h) prohibits the citation, to be resolved as a matter of law rather than ethics.

Common questions

Q: Is it an ethics violation to cite an unpublished Washington Court of Appeals opinion to a trial court?

A: The committee said it does not appear to be a per se violation of the Rules of Professional Conduct, but the lawyer should first consider RPC 3.1 and RPC 3.4(c).

Q: Did the committee decide whether RAP 10.4(h) bars citing the unpublished opinion?

A: No. The committee said it does not opine on questions of law, so it left the effect of RAP 10.4(h) unresolved.

Q: Which rules did the committee say to consider before making such a citation?

A: RPC 3.1 (meritorious claims and contentions) and RPC 3.4(c) (not knowingly disobeying an obligation under the rules of a tribunal).

Background and rules framework

The opinion interprets RPC 3.1 (Model Rule 3.1, meritorious claims and contentions) and RPC 3.4(c) (Model Rule 3.4, fairness to opposing party and counsel, specifically not knowingly disobeying a tribunal's rules). The committee read the citation question through these two advocacy rules rather than through any rule that would treat citing an unpublished decision as inherently improper. RAP 10.4(h) is a Rule of Appellate Procedure, and the committee treated its scope as a legal question outside its advisory role.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.1 / Washington RPC 3.1 (meritorious claims and contentions)
• Model Rule 3.4 / Washington RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal)

Court rules:

• RAP 10.4(h) (Washington Rules of Appellate Procedure; restriction on citing unpublished opinions)

See also

• WA Ethics Op. 1250: Ex Parte Sentencing Candor
• WA Ethics Op. 1209: Client Altered Records, Disclose or Withdraw

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1316

Original opinion text

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

Advisory Opinion: 2072
Year Issued: 2004
RPC(s): RAP 10.4(h), RPC 3.1, 3.4(c)
Subject: Citing to a trial court as precedential authority an unpublished opinion of the Washinton Court of Appeals

The inquirer asks if it is a violation of the RPCs to cite to a trial court, as precedential authority, an unpublished opinion of the Washington State Court of Appeals in light of the prohibition of RAP 10.4(h).

The committee does not issue opinions about the conduct of lawyers other than the one inquiring. Thus, in order to address the inquiry, the committee’s response assumes the requestor is inquiring about his own proposed conduct. Further, the committee does not opine as to questions of law. Citing to an unpublished opinion appears not to result in a per se violation of the RPCs. Nonetheless, citations to such authorities should only be made after consideration of RPC 3.1 and 3.4(c).