In all candor
On Wednesday I talked about a recent case I had involving whether a parent's slapping a child constituted domestic violence, and mentioned that I'd filed a brief which included not only cases supporting my position, but also cases where the courts had held that the parent's attempt at discipline had crossed the line. This earned kudos from one of my legion of regular readers, who complimented me on presenting a balanced approach. Actually, my effort wasn't intended as dispassionate enlightenment: I included the latter cases because they involved conduct far more egregious than that engaged in by my client.
But that got me thinking about a recent Federal case, and also the one ethics rule which I believe is honored solely in the breach.
The latter is Prof.Cond.R. 3.3(a)(2), which provides that a lawyer shall not
knowingly. . . 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.
Try as I might, I can't remember any time during my several decades of practice that I've seen a lawyer stand up and say, "By the way, judge, I'd be remiss if I did not mention the case of Dredd v. Scott, which completely blows out of the water the argument I've been making for the last ten minutes." Let's put it this way: in the immortal words of Bob Dylan, "It ain't me, babe."
In fact, the rule's a little worse than might be expected. It doesn't just require you to 'fess up to "controlling legal authority" in your jurisdiction; any legal authority in the jurisdiction is to be disclosed. Here in the 8th, I can find cases supporting virtually any position, simply because of the fact we've got 12 judges and they hand down over 1,000 decisions a year. Think I'm exaggerating the possibility of conflict? Take a look at the Supreme Court's decision in In re J.J. The court reversed an 8th District decision on whether a procedural error in transferring a case to a visiting judge made the resulting judgment void for lack of subject matter jurisdiction, or simply voidable upon timely objection. The Supreme Court held the latter, but ran into a major problem; as it noted,
Further confusing the issue presented in this case is the fact that the Eighth District Court of Appeals issued two separate opinions in two different cases on this issue on the same day, with separate panels of the Eighth District Court of Appeals each reaching a different result.
So I was tempted to figure that Rule 3.3(a)(2) was a dead letter, until I came across the decision by US District Court here in Watkins v. Williams.
After the Supreme Court's 2006 decision in State v. Foster, which nullified much of Ohio's sentencing law, the hot argument was that Foster presented an ex post facto problem. As I explained a couple years ago, a defendant who committed his crime before Foster came down was entitled to a presumption of minimum, concurrent sentences, which could be overcome only if the judge made certain findings. Foster held that allowing judges to make those findings violated the defendant's right to jury trial, so it threw out the law requiring those findings, which essentially gave judges unbridled discretion in fashioning a sentence. The upshot: someone who committed a crime before Foster but was sentenced afterwards was deprived of the presumption of minimum, concurrent sentences, and was thus retroactively disadvantaged.
That contention had been universally rejected by every court which had considered it when I wrote my post in August of 2007, and it's proven to be the Detroit Lions of legal arguments: no court has yet bought into it. It's being raised now in habeas cases, and the results are equally grim.
Which brings us to Watkins, in which the Foster ex post facto argument was again raised, and again shot down. But the judge didn't stop there:
In conclusion, the Court notes that this District has rejected the precise argument raised herein. The Court adopts the reasoning of [earlier cases] Lyles and McGhee rejecting Petitioner's argument. The Court also reminds counsel that he has an ethical obligation to disclose legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client. The facts herein are particularly troubling because counsel for Petitioner served as counsel in Lyles and McGhee, yet he failed to disclose those adverse decisions to the Court. While counsel may disagree with the outcomes reached by my colleagues in those matters, it does not lessen his obligations to disclose them.
Ooops. Guess the moral of this story is that if there's authority contrary to your position, you better disclose it, especially if you're the reason it's contrary to your position.