Note: This essay was submitted as a comment on the California State Bar's Special Commission for the Revision of the Rules of Professional Conduct proposed rule regarding "candor toward the tribunal."
Comment On Proposed Rule 3.3 Candor Toward The Tribunal
Introduction-
I have a concern with one sentence in Comment [4] to the Commission’s Proposed Rule 3.3 Candor Toward the Tribunal. The sentence of concern is: “‘Controlling legal authority’ may include authority outside the jurisdiction in which the tribunal sits.” My concern is that this will be interpreted to require a lawyer to cite out-of-state case law adverse to his or her client’s position. In thinking about this issue, however, I have discovered that proposed Rule 3.3, as interpreted by Comment [4], is ambiguous.
In what follows I: (1) state my concern; (2) explain why an attorney should not be required to cite out-of-state authority adverse to his or her client’s position; (3) discuss the ambiguities in the proposed California version of Rule 3.3; and (4), argue that the ambiguities should be resolved by giving some specific examples of what is required in the citation of adverse authority.
The Concern-
Comment [4] to proposed Rule 3.3 states in part: “‘Controlling legal authority’ may include authority outside the jurisdiction in which the tribunal sits.” (Emphasis added.) The italicized language could be interpreted to mean that an attorney is required to cite out-of-state authority adverse to his or her client’s position.
The fact that Comment [4] could be interpreted to refer to out-of-state cases does not mean that it has to be interpreted that way, or that it is the intent of the Commission that it refer to out-of-state cases. In California the intermediate appellate courts are not bound by opinions from other intermediate appellate courts. (See In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409 [105 Cal.Rptr.2d 863].) So while the Sacramento County Superior Court might be bound by cases from the Fifth District Court of Appeal in Fresno, the Third District Court of Appeal in Sacramento is not. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) Therefore the statement that controlling legal authority may include authority outside the jurisdiction in which the tribunal sits might be intended to cover situations like the one where an attorney appearing before either the California Supreme Court, or the Third District Court of Appeal in Sacramento, is aware of an adverse case from the Fifth District Court of Appeal in Fresno.
Why There Should Ordinarily Be No Ethical Duty To Cite Out-of-State Case Law-
It is clear that out-of-state cases are sometimes relevant to California litigation. Appellate courts have on occasion implicitly criticized attorneys for not citing out-of-state case law when the court faces an issue of first impression. (See People v. Rhoden (1999) 75 Cal.App.4th 1346, 1352, fn. 4 [89 Cal.Rptr.2d 819].) Two courts have stated that, if there is no California authority on point, the attorney may have an affirmative duty to cite out-of-state case law. (See People v. Taylor (1974) 39 Cal.App.3d 495, 496 [114 Cal.Rptr. 169]; Tate v. Conica (1960) 180 Cal.App.2d 898, 900 [5 Cal.Rptr. 28].) And in rare cases it might be that out-of-state case law is determinative of the issue before a California court. An example is where the out-of-state case’s interpretation of the elements of a crime will determine whether a person convicted of that crime will have his sentence enhanced as a result of a later California conviction. (See People v. Riel (2000) 22 Cal.4th 1153, 1203-1204 [96 Cal.Rptr.2d 1, 998 P.2d 969].)
While I would agree that an attorney would be ethically required to cite a Washington case adverse to his or her client’s position in People v. Riel, lawyers should not have a general duty to cite of out-state-cases. I have a lot of experience researching out-of-state cases. In the vast majority of situations a lawyer will be able to find an out-of-state case that is contrary to the out-of-state case the lawyer wishes to cite to the court. Consider for example ALR annotations. To a great extent ALR annotations are just compilations of conflicting out-of-state cases. A general duty to site out-of-state cases will turn a lawyer’s brief into a virtual ALR annotation. And that would go against Comment [4]’s countervailing policy: “Although a lawyer is not required to make a disinterested exposition of the law, legal argument based on a knowing false representation of law constitutes dishonesty toward the tribunal.” (Emphasis added.)
There is a reason why out-of-state law is more contradictory than law from within any single jurisdiction. (And hence why one will most often find out-of-state cases adverse to his or her client’s position.) As will be explained later, controlling legal authority (with regard to case law) usually means that a controlling precedent is synonymous with a binding precedent. Historically binding precedents could not arise until there was a hierarchy of courts. (See Hart v. Massanani (9th Cir.) 266 F.3d 1155, 1164-1165, 1175.) “Only towards the end of the nineteenth century, after England had reorganized its courts, was the position of the House of Lords at the head of its judicial hierarchy confirmed. Before that, there was no single high court that could definitively say what the law was.” (Id. at pp. 1164-1165.) In California the hierarchy allows the California Supreme Court to maintain a coherent body of case law by putting an end to splits of authority among the intermediate appellate courts of the state. California Rules of Court, Rule 8.500 subdivision (b), provides that one ground upon which a litigant may petition for review of a case by the California Supreme Court is when it is “necessary to secure uniformity of decision.” But there is no hierarchy of courts that resolves the web of conflicting opinions that one finds in out-of-state cases.
If Rule 3.3 is construed to require the citation of out-of-state cases, then it will penalize the most diligent legal researchers. The harder one works to find cases, the more one will be required to turn over adverse authority to one’s opponent.
The best interpretation of Rule 3.3 is that it does not require an attorney to cite adverse out-of-state case law. This interpretation can be supported by a reductio ad absurdum argument leading to the conclusion that, if Rule 3.3 does require the citation of out-of-state case law, then an attorney with a California Supreme Court case directly on point, and in his client’s favor, will additionally be required to cite a contrary case from the Mississippi Court of Appeal. My concern is with how Rule 3.3 might be interpreted.
The Seventh Circuit Court of Appeals may disagree with me. In litigation in federal district court in the State of Illinois, one party failed to cite a case from the Illinois state appellate court, and failed to cite a case from the Seventh Circuit. In response to the party’s objection that the Illinois state case did not have to be cited because it was not dispositive, but merely persuasive authority, the Court of Appeals replied that “this argument is an exercise in gall when presented by the same attorney who argued in briefs that the district court should rule in his client’s favor based upon intermediate California and Washington state court decisions, as well as decisions of federal district courts from outside this Circuit.” (Mannheim Video, Inc. v. County of Cook (7th Cir. 1989) 884 F.2d 1043, 1047.) But Mannheim did not consider the arguments that I have made above.
The Ambiguities of Proposed Rule 3.3-
Both the ABA Model Rule 3.3 and the proposed California Rule 3.3 use the adjective “controlling.” The difference, however, is that the adjective modifies different nouns in the respective rules.
In the ABA model rule the adjective modifies “jurisdiction” in the relevant part of the rule:
(a) A lawyer shall not knowingly:
(2) 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;
or
In the proposed California rule the adjective modifies “legal authority” in the relevant part of the rule:
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
I cannot find a definition of “controlling legal authority.” What one does find are cases giving examples of what controlling authority is. Controlling authority includes statutes. (Texas American Oil Corp. v. U.S. Dept. of Energy (D.C. Cir. 1995) 44 F.3d 1557, 1561.) It even includes temporary treasury regulations. (Bankers Trust New York Corp. v. U.S. (1996) 36 Ct.Cl. 30, 37.) Clearly, “controlling law” includes cases. (See Schaeffer v. State Bar (1945) 26 Cal.2d 739, 747-748 [160 P.2d 825].) Sometimes we see the term “controlling precedent.” (See Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 109.)
The notion of controlling authority in the form of a case suggests reference to a proposition of law in a case that is binding; that is, a proposition that is part of a case’s holding, as opposed to mere dicta.
But there are also very important differences between controlling and persuasive authority. As noted, one of these is that, if a controlling precedent is determined to be on point, it must be followed. Another important distinction concerns the scope of controlling authority. Thus, an opinion of our court is binding within our circuit, not elsewhere in the country.
(Hart v. Massanani, supra, 266 F.3d at pp. 1172-1173.) And cases decided by the New York state courts are not “controlling authority” in federal district courts sitting in New York. (JPMorgan Chase Bank v. Cook (S.D.N.Y. 2004) 322 F.Supp.2d 353, 355.)
Thus without Comment [4] it might appear as though California has adopted the “narrow view,” which sees “controlling authority” as those cases “decisive of the pending case.” (See the discussion in Tyler v. State (Alaska App. 2001) 47 P.3d 1095, 1104-1107.) If so, then Comment [4] might change things by telling us that, if controlling authority may include cases from a jurisdiction other than that in which the tribunal sits, then controlling legal authority in the Third District Court of Appeal includes cases from the Fifth District Court of Appeal. That is because, as controlling authority is usually understood, cases from the Fifth District Court of Appeal are not binding in other district courts of appeal (or in the California Supreme Court). In California appellate court opinions are persuasive authority for other appellate courts of equal authority in the judicial hierarchy. (See 9 Witkin, California Procedure (5th ed. 2008) Appeal §498, pp. 558-560.) So Comment [4] might have a purpose other than to require the citation of out-of-state cases.
There are some problems with this view, however. The Third District Court of Appeal is not bound by its own decisions. The California Supreme Court is not bound by its own decisions. (See 9 Witkin, California Procedure (5th ed. 2008) Appeal §492, p. 553.) And the California Supreme Court is not bound by the decisions of the courts of appeal. But there is no analogous comment to the proposed Rule 3.3 defining “controlling legal authority” as persuasive authority from the very tribunal before which the attorney is arguing. In other words (under the interpretation I have just put forth) the attorney is specifically told he or she must cite Fifth District Court of Appeal cases in the Third District Court of Appeal, but not specifically told that he or she has to cite adverse Third District Court of Appeal cases in the Third District Court of Appeal. The attorney is not specifically told that he or she is required to cite to the California Supreme Court adverse decisions from the courts of appeal. And the attorney is not specifically told that he or she has to cite to the California Supreme Court adverse decisions from the California Supreme Court.
A second problem is reflected in Shaeffer v. State Bar, supra, which weakens the notion of controlling authority in a way that suggests that California might not follow “the narrow view” after all. In that case an attorney was accused of misleading a trial court by failing to cite an applicable case. The attorney’s defense was that the case in question was not controlling because the relevant statement was “dictum.” While the California Supreme Court failed to discipline the attorney, as to this particular charge, because there was no evidence the attorney intentionally mislead the court, the Supreme Court stated that the attorney should have cited the case, and then argued to the court that it was not controlling. (26 Cal.2d at p. 748.) This appears to be the same result as would be reached under the ABA Model Rule 3.3. Thus in Tyler v. State, supra, the court cited Shaeffer in support of its conclusion that an attorney has a duty to cite “adverse” legal authority under ABA Model Rule 3.3 even though the attorney reasonably believes that the court will conclude that the precedent does not control the present case because it is distinguishable, or for some other reason. (See 47 P.3d at pp. 1105-1106.) Under Schaeffer the attorney’s duty is to cite cases that might be controlling. Whether a precedent is adverse under the ABA model rule, or controlling under the proposed California rule, is up to the court to decide; not the attorney.
There are some problems with Schaeffer. One is that it did not spend a lot of time analyzing the issue of the failure to cite controlling case law. A second problem is that Schaeffer fails to make the distinction between judicial dicta and obiter dicta. Obiter dicta are “by the way” statements. (Cross & Harris, Precedent in English Law (4th ed. 1991) 41.) Thus they are not entitled to serious consideration and can be safely ignored. (Scofield, Judicial Dicta Versus Obiter Dicta: An Examination of the Dicta That Has Great Authority, 25 Los Angeles Lawyer (Oct. 2002) 17.) But judicial dicta is entitled to greater weight since these are legal propositions resulting from a court’s comprehensive discussion of the issues. (Ibid.) Judicial dicta “should be followed in the absence of some cogent reason for departing therefrom.” (State v. Fahringer (Ariz. 1983) 666 P.2d 514, 515.) One reason this distinction is important for our purposes is that an ethical rule requiring the citation of adverse obiter dicta will lead to the courts becoming highly irritated. Judges do not want briefs lengthened by unsupported legal propositions. But the situation with regard to judicial dicta is different. Courts hold that judicial dicta from the California Supreme Court should be followed. (See, e.g. Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 [78 Cal.Rptr.2d 819].) The spirit of the proposed Rule 3.3 would require attorneys to cite adverse judicial dicta from the courts of appeal and the California Supreme Court.
But if Schaeffer represents the California view of controlling legal authority, there doesn’t seem to be much difference between the proposed California version of Rule 3.3 and the ABA version of Rule 3.3, notwithstanding the difference between where the adjective “controlling” is placed. In Mannheim Video, Inc. v. County of Cook, supra, the court made the following statement with regard to attorneys failing to cite a Seventh Circuit case in a district court governed by the Seventh Circuit:
... Hill and Bonds made clear that an attorney should not ignore potentially dispositive authorities; the word “potentially” deliberately included those cases arguably dispositive. Counsel is certainly under obligation to cite adverse cases which are ostensibly controlling and then may argue their merits or inapplicability.
(884 F.2d at p. 1047.) Under Shaeffer an attorney has to cite cases he or she may not believe are controlling authority because it is up to the court to make the determination of what constitutes controlling authority. And the cases seem to suggest that, as a practical matter, whether a case is adverse is very similar to whether a case is controlling. Thus a lawyer may argue under the ABA Rule 3.3 that a precedent is not adverse to his client’s position because the case is distinguishable. And the lawyer can argue under the proposed California Rule 3.3 that the precedent is not controlling legal authority because it is distinguishable.
In summary, proposed Rule 3.3 is both over and under inclusive. It is over inclusive in that it could require the routine citation of adverse out-of-state cases. (I admit that it is only over inclusive if I am right that the citation of out-of-state case law is not part of the purpose of the proposed rule as interpreted by Comment [4].) It is under inclusive to the extent that it might be construed to require the citation of court of appeal cases from other district court of appeals, but not require the citation of court of appeal cases to either the court of appeal issuing the case or the California Supreme Court. The bottom line is that it is just not clear what Comment [4] means when it says that controlling legal authority may include authority outside the jurisdiction in which the tribunal sits.
In addition to the problem of over and under inclusiveness, there is the problem of the ambiguity of “controlling legal authority” with regard to case law. Does it include judicial dicta? That is, does it include well articulated arguments presented by the court that were not necessary to the decision reached in the case?
I do not think that the ethical obligation can be expressed with general statements or principles. I think the rule, or the comment to the rule, should present examples. With all of these thoughts in mind I present a suggested revision below.
Proposed Revision of Comment [4]
My proposed revisions are in italics.
Legal Argument
[4] Although a lawyer is not required to make a disinterested exposition of the law, legal argument based on a knowing false representation of law constitutes dishonesty toward the tribunal. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. Paragraph (a)(2) requires a lawyer to disclose directly adverse and controlling legal authority that is known to the lawyer and that has not been disclosed by the opposing party. “Controlling legal authority” may include authority outside the jurisdiction in which the tribunal sits. This does not ordinarily require an attorney to cite out-of-state case law, though it would require the citation of such law where it would be determinative of the issue before the court as in People v. Riel (2000) 22 Cal.4th 1153, 1203-1204. Under this Rule, the lawyer must disclose authorities the court needs to be aware of in order to rule intelligently on the matter. This would include case law that is not strictly binding on the tribunal before which the attorney is appearing. For example an attorney would be required to cite adverse cases that were issued by one panel of the Court of Appeal to another panel of the Court of Appeal. The attorney would also be required to cite an adverse case from the Court of Appeal to the California Supreme Court. And an attorney would be required to cite adverse precedent from the California Supreme Court to the California Supreme Court. In addition, a lawyer may not knowingly edit and submit to a tribunal language from a book, statute, rule, or decision in such a way as to mislead the court, or knowingly fail to correct an inadvertent material misquotation that the lawyer previously made to the tribunal.