The line between zealous advocacy and ethical conduct can sometimes become blurry to the advocate seeking to vindicate the client’s cause. And this includes appellate advocacy, not just trial work. Fortunately, the Rules of Professional Conduct inform counsel that ethical duties actually demarcate the boundaries that might otherwise be overlooked. And one of those duties is to disclose adverse authority to the courts, not simply to ignore it.
It’s been a little over a year since attorneys practicing in California were introduced to Rules of Professional Conduct, rule 3.3 “Candor Toward the Tribunal.” In simple terms, the rule requires lawyers to be truthful when addressing a court. But beyond that, subdivision (a)(2) imposes an affirmative duty on lawyers to disclose any law that is “directly adverse” to their client’s position:
(a) A lawyer shall not:
(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 knowingly misquote to a tribunal the language of a book, statute, decision or other authority; …
(Rules of Professional Conduct, § 3.3 subd. (a)(2).)
At first, this rule might seem counterintuitive. After all, a lawyer has a duty to zealously advance the interests of the client and not the interests adverse to the client. But, the Court of Appeal has made clear that the duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law. (See, e.g. Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 126.) And Rule 3.3 further makes clear that failing to disclose adverse authority is not within the bounds of the law.
The Court of Appeal has not shied away from reminding counsel of their duty of candor with respect to adverse authority. For example, in Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, challengers to California’s compulsory immunization requirements for children attending public and private schools sought review of a trial court’s order sustaining the State’s demurrer without leave to amend. The challengers argued that their complaint adequately alleged that the State’s immunization requirements violated their rights under California’s Constitution to due process, privacy, public education, and free exercise of religion. But in doing so, the challengers failed to cite in their opening brief two seminal vaccination cases directly on point and adverse to their position. Pointing to former rule 5-200 (now Rule 3.3), the appellate court concluded that the failure to cite or acknowledge the adverse case law violated the attorneys’ duty of candor to the court.
Failure to address adverse authority was similarly addressed in People v. Phea (2018) 29 Cal.App.5th 583. There, a defendant was charged with heinous sex offenses against various children, including his daughter. The defendant appealed on multiple grounds, one of which was ineffective assistance of counsel based on his lawyer’s failure to object to the introduction of evidence related to his prior acts of child molestation to show propensity. In support of his argument, the defendant cited a Ninth Circuit case holding that introduction of prior acts to show propensity violated a defendant’s substantive due process rights. However, the defendant failed to cite a later Ninth Circuit case that was directly on point and that permitted the admission of evidence of uncharged acts of child molestation to show propensity without running afoul of the due process clause. The Court of Appeal admonished appellate counsel for relying on the earlier Ninth Circuit case without citing the later, pertinent, and contrary authority. The Court reminded appellate counsel that under his duty of candor, he was obligated to cite the adverse authority in his brief.
Both Love and Phea make clear that turning a blind eye to adverse authority is the wrong way to deal with adverse authority. Doing so runs the risk that either opposing counsel or the Court will find the adverse case law (which they will), point it out, and deal a serious blow to a brief’s credibility. Moreover, since the duty is one born by the lawyer, not the client, the real lasting damage will be to counsel’s credibility in future cases. To avoid this kind of damage, counsel is well advised to deal with the adverse authority head on and in full compliance with the duty of candor.
David is an Associate with Hanson Bridgett’s Appellate practice group where he focuses on writs, appeals, and law and motion. He has filed numerous amicus curiae briefs on an array of issues, and has been Counsel of Record for amici in both the California and United States Supreme Courts.