Duty to Disclose Adverse Legal Authority

Many attorneys ignore the rule, pretend it does not exist, or don’t even know of its existence. Case law on the rule is relatively sparse. No published Tennessee cases discuss it in any detail. Furthermore, the rule seems contrary to the sense of the American legal system as an adversarial system of justice. However, it is a rule with a long history. It is the duty to cite adverse legal authority — even if not cited by opposing counsel.

The Tennessee Rules of Professional Conduct provide that an attorney shall not “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.”[1]

The American Bar Association has had such a rule for a long time. An ABA Formal Ethics Opinion in 1949 spoke of the duty with the following broad test: “The test in every case should be: Is the decision which opposing counsel has overlooked one which the court should clearly consider in deciding the case?”[2]

In Tennessee, an unpublished federal district court decision mentions the rule when mentioning that attorneys for a nursing home failed to disclose to the court another federal court decision addressing the very same legal question — whether the addition of a nursing home administrator as a defendant was fraudulently added to defeat diversity jurisdiction.[3]

The reason for the rule is addressed in the comments. Comment 4 explains that “[t]he underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.”[4]

Note that the rule on its face applies only if a lawyer “knowingly” fails to cite adverse legal precedent. Thus, the rule may not apply to attorneys who are negligent or incompetent. Legal commentator Risa Lischkoff writes that “[t]o invoke the Rule, it must clearly be shown that the lawyer knew of the adverse authority; this is often a substantial obstacle.”[5]

Courts usually apply the rule harshly against attorneys who have had a hand in creating the adverse precedent.[6] A good example involves Alaskan defense attorney Eugene Cyrus, who failed to cite an Alaska Supreme Court case in which he was the attorney of record. Cyrus represented a man convicted of felony driving while intoxicated (DWI), the offense committed by someone driving while intoxicated and who has previous offenses. Cyrus not only misrepresented the nature of his client’s previous offenses, but failed to cite the controlling Alaska Supreme Court case on the subject — a case that Cyrus had litigated. This drew the ire of the state high court.[7]

Cyrus argued that the supreme court case was distinguishable and, thus, not directly adverse within the meaning of the rule. The Alaska high court was not persuaded. The Alaska Supreme Court explained that “a court decision can be ‘directly adverse’ to a lawyer’s position even though the lawyer reasonably believes that the decision is factually distinguishable from the current case or the lawyer reasonably believes that, for some reason, the court will ultimately conclude that the decision does not control the current case.”[8]

The Case of Willie Massey

Perhaps the most intriguing case involving the duty to disclose adverse legal authority involves a civil rights lawsuit filed by a homeless man named Willie Massey. Massey sued Prince George’s County after its police officers set their attack dog on him while he was sleeping in an abandoned building. Massey sued the officers for assault and battery under state law and for a violation of his Fourth Amendment rights to be free from unreasonable searches and seizures.[9]

County attorneys filed a motion for summary judgment, relying primarily on a Sixth Circuit decision, Robinette v. Barnes, 854 F.2d 909 (1988), as their primary legal authority. In this case, the Sixth Circuit had ruled that the use of a trained police dog was not unreasonable.[10] Massey’s attorney failed to come up with any contrary authority and merely tried to distinguish the Sixth Circuit case. Based on the Sixth Circuit case, the district court judge granted summary judgment to the county on Massey’s Fourth Amendment claims.[11]

The federal district court then inquired of the attorneys on the status of the state claims. In response, Massey’s attorney belatedly cited a Fourth Circuit case of similar facts that had gone the way of the civil rights plaintiff.[12] In this Fourth Circuit case, the appeals court had ruled that “a jury could find it objectively unreasonable to require someone to put their hands up and calmly surrender while a police dog bites his scrotum.”[13]

The federal district court judge in Massey’s case was not pleased. He was upset at Massey’s counsel for arguably violating the duties of competency and diligence in being dilatory at citing the controlling Fourth Circuit precedent. However, the federal district court judge was even more upset with the county attorneys. Why? Because, it appeared they had tried to hide the ball and violated the duty to disclose adverse legal authority. The judge wrote that the defendant county’s failure to cite the controlling case “gives cause for even greater concern” and “the action of defense counsel in this case raises a far more serious concern.”[14]

The judge reasoned that county attorneys surely knew about the Kopf case because it also involved a suit against Prince George’s County for improper use of a police dog. “The regrettable inference is that defense counsel in the instant case may in fact have deliberately failed to disclose to the Court directly controlling authority from this Circuit,” the court wrote. “If so, the action would constitute a clear violation of the Rules of Professional Conduct.”[15]

The judge ordered a show cause hearing. County attorneys argued that they did not knowingly fail to cite Kopf because the lawyers working on the Massey case were relatively new and didn’t know about the Kopf case. They also argued that Kopf was not “directly adverse” to Massey’s case.[16] The federal district court was not persuaded, finding that the factual distinctions drawn by the county attorneys were “either unconvincing or simply immaterial.”[17]

The federal district court was not persuaded by the “directly adverse” argument and provided that “in this district whenever a case from the 4th Circuit comes anywhere close to being relevant to a disputed issue, the better part of wisdom is to cite it and attempt to distinguish it.”[18]

Conclusion

Attorneys have an ethical obligation to cite directly adverse legal authority. While attorneys may try to argue that precedent is only tangentially adverse or not distinguishable, they are flirting with ethical trouble. It may be, as the district court in Massey III wrote a “bold and risky gambit.”[19]

Legal argument is a discussion and counsel should assist the court, not try to play hide the ball.

Notes

  1. Tenn. Sup. Ct. R. 8, RPC 3.3(a)(2).
  2. ABA Formal Ethics Opinion 280 (1949).
  3. See Matthews v. Kindred Healthcare Inc., 2005 U.S. Dist. LEXIS 38295 (W.D. Tenn.)(Dec. 7, 2005).
  4. Tenn. Sup. Ct. R. 8, RPC 3.3(a)(2), Comment 4.
  5. Risa B. Lischkoff, “Recent Decisions on Citing Authorities to Courts: Model Rule 3.3(A)(3) of the Model Rules of Professional Conduct,” 9 J. of Legal Profession 315, 319 (1994).
  6. See Matthews at *15, n. 4 (“Serious sanctions for the violation of the obligation to cite directly contrary authority are usually limited to cases in which the lawyer or his associates were involved in the development of the prior precedent, as in the present case.”).
  7. Tyler, 47 P.3d at 1099.
  8. Tyler, 47 P.3d at 1106.
  9. Massey v. Prince George’s County, 907 F.Supp. 138, 139–40 (D. Md. 1995) (“Massey I”).
  10. Massey I, 907 F.Supp. at 140.
  11. Ibid.
  12. Massey I, 907 F.Supp. at 141.
  13. Ibid., quoting Kopf v. Wing, 942 F.2d 265, 268 (4th Cir. 1991).
  14. Massey, 907 F.Supp. at 141–42.
  15. Massey, 907 F.Supp. at 142.
  16. Massey v. Prince George’s County, 918 F.Supp. 905 (D. Md. 1996) (“Massey II”).
  17. Massey II, 918 F.Supp. at 907.
  18. Massey II, 918 F.Supp. at 908.
  19. Ibid.

David L. Hudson Sr. DAVID L. HUDSON JR.is the co-editor of The Encyclopedia of the Fourth Amendment (CQ Press, 2013). He also serves as the director of academic affairs and professor of law at the Nashville School of Law (NSL). He teaches classes at NSL and Vanderbilt University Law School, including about professional responsibility. He received his law degree from Vanderbilt.

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