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:

California practitioners generally know that they cannot cite or rely upon unpublished or depublished California opinions in California courts, except when relevant to law of the case, res judicata, etc.  (Cal. Rules of Court, Rule 8.1115(a).)  Violations of the “no-citation rule” can even be sanctionable. (People v. Williams (2009) 176 Cal.App.4th 1521, 1529; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 885-886.)

Recently, though, there has been an underground debate as to whether the judicial notice statute, Evid. Code, § 452(d)(1), might trump Rule 8.1115. (See Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 218, fn. 14; Rafi Moghadam, Judge Nullification: A Perception of Unpublished Opinions (2011) 62 Hastings L.J. 1397; Scott Talkov, Citing Unpublished Opinions: The Conflict Between the No-Citation Rule and Judicial Notice, California Litigation Attorney Blog.)

In the Roman Republic, the right to appeal (provocatio, as in “provocation”) from a magistrate’s summary use of power was regarded as one of the most important safeguards of liberty. The democratic force of the right to appeal survives today. (See, e.g., Griffin v. Illinois (1956) 351 U.S. 12, 18; Cassandra Burke Robertson, The Right to Appeal (2013), 91 N.C. L. Rev. 1219.) Indeed, it is often said that everything may be reviewed on appeal, but as in almost every aspect of law, there is an exception: In California, a trial judge’s refusal to be recused by way of a peremptory challenge is reviewable only by writ. (Code Civ. Proc., § 170.6.) Here are some practical tips for optimizing the chances of obtaining review.