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Judge Reinhardt Admonishes Appellate Lawyers:

An interesting case just decided today, in which it seems that the lawyers would have been wise not to appeal an erroneous district court decision -- and in which the lawyers' apparent error risked costing the clients many years in jail (though a Supreme Court case decided after the appeal was filed ended up precluding that result). I should note that I have not investigated the matter myself; but I'm inclined to trust Judge Reinhardt's analysis.

aaronwilliams:
Oren Kerr: (http://www.volokh.com/posts/1234237240.shtml)


Sounds fishy to me, but then I suppose I often have that reaction when the name "REINHARDT" appears on a judicial opinion.


Eugene Volokh: (http://www.volokh.com/posts/1234297705.shtml)


I'm inclined to trust Judge Reinhardt's analysis.


I'm sensing a Conspirator Split.
2.10.2009 3:37pm
Terrivus:
Unintentionally ironic Judge Reinhardt statement of the day, from page 1593 of the opinion (page 8 of the PDF):

"Judges, however, are not gods."

Says the man who just ordered the release of 25% of the California penal system.
2.10.2009 3:42pm
Steve:
Wow, fascinating decision.
2.10.2009 3:50pm
Plastic:
Even a stopped clock is right twice a day.
2.10.2009 3:50pm
Calderon:
The admonition brings up a (semi-)interesting question. If your criminal client is hell-bent on appealing even though you, as his or her attorney, think the consequences of an appeal will be disastrous, is there any way to stop your client from having you file the appeal? Can you file an Anders brief first, and then withdraw if that's accepted leaving the client to his own devices?
2.10.2009 4:06pm
Anderson (mail):
I have a problem with the court's assumption that counsel did NOT advise the parties against appealing the sentence.

That's all it is, an assumption; and on that basis, the court impugns the attorneys.
2.10.2009 4:08pm
Kent Scheidegger (mail) (www):
Damn, Plastic beat me to it. Why would any person of sense "trust Judge Reinhardt's analysis"? That doesn't mean his conclusions are always wrong, though.

Calderon, no, I don't think the lawyer can stop the determined client from a self-destructive appeal, after giving the proper advice, etc., etc. See Roe v. Flores-Ortega, 528 U.S. 470 (2000).
2.10.2009 4:13pm
Eugene Volokh (www):
Aaron Williams: Publicly chastising lawyers in a published opinion is a pretty big deal -- the sort of thing on which a judge is likely to careful check his facts and his analysis. Perhaps there might be risk of skepticism if we think the judge has some animosity towards a particular category of lawyers, but I have no reason to think that Judge Reinhardt has any such animosity towards appellate lawyers who represent criminal defendants. So I do think that Judge Reinhardt's characterization of the situation here is trustworthy, even if I might disagree with him on various legal questions.
2.10.2009 4:14pm
Anderson (mail):
the sort of thing on which a judge is likely to careful check his facts and his analysis

Unfortunately, that assumption does not seem to be borne out by the language of the opinion:

While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been

In short, merely on the basis of the appeal's being a truly bad idea, the court "seriously questions the quality of counsel's advice."

And warns them of sanctions in future.

That is just not cool, and I'm a little appalled that Hug and Tashima signed onto that.
2.10.2009 4:21pm
Mike& (mail):
That is just not cool, and I'm a little appalled that Hug and Tashima signed onto that.

Did you pull the briefs off of Westlaw?

I have no idea what was argued. I haven't done the research. Based on Reinhardt's response, I suspect that if I pulled the briefs, they wouldn't be good quality.

If you pull the briefs and conclude otherwise, please let us know.
2.10.2009 4:27pm
Mike& (mail):
Calderon, no, I don't think the lawyer can stop the determined client from a self-destructive appeal, after giving the proper advice, etc., etc. See Roe v. Flores-Ortega, 528 U.S. 470 (2000).

Were these lawyers court-appointed? If so, they might be screwed.

If clients wrote them checks, that's another matter. Sure, you can't tell a client not to file a brief. But you don't have to be the lawyer who does it. Sorta like some guys I know who won't represent accused pedophiles. "Yes, you should have a lawyer. You just can't have this lawyer."
2.10.2009 4:29pm
D.A.:
Anderson,
I'm generally on the same page as you, but I'll depart in this case.
The court's position is totally cool. This wasn't just "a truly bad idea." This was astonishing malpractice, and the appellate lawyers clearly made arguments that were foreclosed by controlling law, without a good argument for reconsideration of the controlling law. That's clear malpractice.
2.10.2009 4:32pm
Roscoe B. Means (mail):
To me, the telling words in that final paragraph are "is pursued in such a manner as this one has been." Since the case was submitted without argument, my guess is that the brief took some unwarranted and unkind swipes at the district court.
2.10.2009 4:37pm
Another Guest:
It might be easy for Reinhardt to tell the lawyers it a truly bad appeal, but try telling that to the client. The appeal doesn't even cite Anders as the way to proceed in these types of situations. If the panel was truly trying to send a message to counsel, it would have instructed them to walk the ethical tightrope by filing an Anders brief, rather than by simply castigating them for filing an appeal that the court ultimately found frivolous.
2.10.2009 4:37pm
Anderson (mail):
Mike&, the opinion doesn't cite the briefs for the court's mysterious psychic knowledge, so I'm not sure why you think that consulting them is relevant here.

D.A., I am not sure that making such arguments is "malpractice." It may arguably violate Rule 11, but I would want to see some authority that making invalid arguments is malpractice, where you have nothing better to argue. Malpractice regards one's duty to the client, not to the court.

I think that if the attorneys knew the law and realized their clients' windfall, they would've done well to petition the court for leave to withdraw. But I don't know if they could've done so without tipping off the court and the feds as to the error (tho I guess the feds had only so long to cross-appeal).

Reading the tea leaves, I'm interested that the parties had different counsel -- that suggests some problems for the defense right there.
2.10.2009 4:39pm
titus32:
Without having read the opinion, I tend to agree with Anderson (and I rarely do). From personal experience, I know that clients can make, ahem, imprudent decisions to appeal their convictions. They can do so over the advice of counsel. In that situation, unless counsel withdraws, he is left to make his best argument on appeal. If his best argument on appeal is a stretch, this is not malpractice.
2.10.2009 4:42pm
Mike& (mail):
Mike&, the opinion doesn't cite the briefs for the court's mysterious psychic knowledge, so I'm not sure why you think that consulting them is relevant here.

What? I don't understand this. Really.

What "psychic knowledge"?

Do you realize that judges read briefs? You can draw inferences from briefs. If a brief is poorly argued, one might rationally infer that the lawyers gave bad advice.

Malpractice regards one's duty to the client, not to the court.

If you give a client bad advice, filing an appeal that costs them 5 more years in prison: How have you not breached your duty to the client?

Are you trolling? Or do you just not understand how the appellate process works?
2.10.2009 4:48pm
titus32:
Mike&-- I think you're missing something here. Anderson's point is that the court assumed counsel advised his client to appeal. This most likely will not be resolved by the briefs. In any event, your accusations of trolling and ignorance are silly.
2.10.2009 4:53pm
DC:
The fact that his appellate counsel did not argue against -- or presumably even acknowledge -- the controlling precedent against them suggests that the Court is right in its guess that the appellate counsel simply didn't know that this was a losing argument.

I'm also a little curious to see the briefs.
2.10.2009 5:17pm
A Law Dawg:
Reinhardt sure is scolding them harshly for something not raised by the district court or the Appellee.
2.10.2009 5:20pm
A.S.:
Wow, that opinion seems to me to be unduly harsh on the appellate defense lawyers.

The whole issue came up because the District Court didn't understand the law, and gave the criminals sentences lower than the minimum. And yet, Reinhart doesn't chastise the District Court for its screw up. Instead, when the appellate lawyers also messed up the law in the same way that the District Court did, Reinhert goes crazy on them.

Yes, apparently the defense lawyers screwed up. But I don't really have a problem with defense lawyers who make the same mistake as the District Court did.
2.10.2009 5:23pm
Wilpert Percival Gobsmacked (mail):
Love it!
We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous.
But besides Hamilton and Park, doesn't Reinhardt's ruling also offer a back-handed slap at the US Atty's office in Phoenix for failing to adequately analyze and act on the government's options in these cases?
2.10.2009 5:24pm
Anderson (mail):
The fact that his appellate counsel did not argue against -- or presumably even acknowledge -- the controlling precedent against them suggests that the Court is right in its guess that the appellate counsel simply didn't know that this was a losing argument.

You may be right -- we're all kinda guessing here, since indeed the poing against Reinhardt is that *he* is guessing -- but if counsel *did* know the law was against them, they presumably would have hesitated to say as much, or else be cited for filing a frivolous appeal. Damned if you do, damned if you don't.

I'm not sure the lawyers did the right thing, but if the clients were in denial and dead-set on appealing, then "the right thing" may've been difficult to determine.

Much more difficult than Reinhardt allows.
2.10.2009 5:25pm
A.S.:
I'm sensing a Conspirator Split.

Does that mean it is likely that some higher authority will take up the issue and tell one of the Conspirators he has it wrong? Who exactly do we petition for certiorari?
2.10.2009 5:27pm
Steve:
I'm not sure the appellate lawyer's duty here is substantially different from the duty of a doctor whose patient insists on receiving a prescription for poison.

If I know my arguments have no chance for success, because they are foreclosed by settled precedent, and that a possibility exists that my clients may end up sentenced to an even longer term, there's no way my ethical duty requires me to file that appeal anyway.

Heck, throw out the issue of the mandatory minimum altogether, and there's still no ethical duty that requires appellate counsel to make a frivolous argument.
2.10.2009 5:33pm
Rock Chocklett:
From J. Reinhardt's opinion:


The Beltrans’ trial counsel had the good sense not to
object to the district court’s sentence, which — given that it was lower than legally permitted — was certainly better than they could have possibly imagined.


From the ABA Model Rule 3.3(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[.]
2.10.2009 5:34pm
Anderson (mail):
Good catch, Chocklett -- why single out the appellate counsel while giving trial counsel a high-five?
2.10.2009 5:50pm
Mike& (mail):
If I know my arguments have no chance for success, because they are foreclosed by settled precedent, and that a possibility exists that my clients may end up sentenced to an even longer term, there's no way my ethical duty requires me to file that appeal anyway.

Correct.

Lawyer, do no harm.
2.10.2009 5:51pm
Non-American:
Good lord, is this seriously how long people go to jail for these sorts of offences in the United States?
2.10.2009 6:04pm
PubliusFL:
Non-American:

Yes. It happens something like this:

[Sarcastro mode]
Liberal legislators: We've got to do something about the evil guns that are causing so much carnage!
Conservative legislators: We won't stand for any more restrictions on law-abiding gun owners, but we don't care much for criminals. How 'bout we just jack up penalties for gun crimes instead?
Liberal legislators: Hmm. We don't really have anything against criminals, but we really hate those guns. Okay, we'll take what we can get!
Libertarians (non-legislators cuz they can't get elected): WTF?
[/Sarcastro mode]
2.10.2009 6:16pm
Prosecutorial Indiscretion:
Good lord, is this seriously how long people go to jail for these sorts of offences in the United States?

For federal drug and gun offenses, yes. As the bumper sticker says, "Gun crime is jail time." In practice, most drug and gun cases are handled at the state level, where sentences are dramatically more lenient.
2.10.2009 6:47pm
Sasha Volokh (mail) (www):
Chocklett: One of the many differences between "good sense" and (so-called) "legal ethics." I go with "good sense."
2.10.2009 6:58pm
krs:
Wow. It's a very interesting opinion. I'm inclined to trust Judge Reinhardt's analysis as well.

aaronwilliams, I suggest that the split is illusory. In this case, Reinhardt affirms a 35-year sentence that he personally thinks is unjust and explains that he's bound by Supreme Court precedent not to remand for resentencing. In Prof. Kerr's post, Judge Reinhardt is letting tens of thousands of criminals loose into California.
2.10.2009 6:59pm
Ex-Fed (mail) (www):
Good lord, is this seriously how long people go to jail for these sorts of offences in the United States?



Yep. 18 USC 924(c), criminalizing carrying or using a firearm during a federal drug crime or federal crime of violence, is a hammer. I once prosecuted a guy who robbed five banks and admitted that he had carried a real firearm each time. He was charged with five 924(c) counts. As a result, his mandatory minimum sentence before he even got to the bank robbery sentence was 105 years. IIRC we pled him out to two 924(c) counts, a 30-year sentence.

With respect to these appellate lawyers -- this may, indeed, have been a failure of research or of candor. On the other hand, it may also have been a failure of client control. Some clients, faced with a thirty-five year sentence, will grasp irrationally at any hope -- they will pursue that 1% chance of a lower sentence, even if the pursuit carries the 25% risk of a higher sentence.
2.10.2009 7:05pm
Calderon:
On the other hand, it may also have been a failure of client control. Some clients, faced with a thirty-five year sentence, will grasp irrationally at any hope -- they will pursue that 1% chance of a lower sentence, even if the pursuit carries the 25% risk of a higher sentence.

That's an excellent point. A person faced with a 35-year sentence might reasonably conclude (especially depending on their age) that it's the same thing as a life sentence. (Or that the present discounted values of their lives after a 35 year sentence wouldn't be worth much). In that case, as Ex-Fed says, they may want to force their lawyer to file an appeal even if it's likely to backfire in the small hope that it succeeds.

Now, of course, the attorneys here may simply have screwed up. But you can imagine the attorneys fully informing their clients of their options and (infinitesimally small) chances of winning on appeal, and the clients still demanding that they file an appeal along the lines of the case here.
2.10.2009 7:28pm
aaronwilliams:
krs,

I was pointing out that it looked like Eugene and Orin viewed Reinhardt, as a judge, in different esteem. Thus the "split" is with regard to the judge, not the opinions. (In fact, I haven't read either case, just the Conspirators' respective commentaries.) I don't find this controversial -- different people often have different preferences. It was just a curious observation. At least to me.

Thanks,

Aaron
2.10.2009 7:30pm
anonymouslawyer:
Isn't it a little troubling that this case was decided on the briefs without oral argument? If the court intends to chastise the attorneys in this fashion -- which at the end of the day may be entirely justified -- shouldn't the panel at least have raised those concerns in person and given them the opportunity to defend themselves?
2.10.2009 7:44pm
krs:
I was pointing out that it looked like Eugene and Orin viewed Reinhardt, as a judge, in different esteem

I assumed that your comment was tongue-in-cheek, and mine certainly was. I doubt that Eugene's and Orin's opinions of Judge Reinhardt as a judge differ much.
2.10.2009 7:47pm
Steve:
In that case, as Ex-Fed says, they may want to force their lawyer to file an appeal even if it's likely to backfire in the small hope that it succeeds.

As an attorney, you have an ethical duty not to pursue an argument that is foreclosed by existing precedent, unless you can find a way to argue in good faith for the reversal or alteration of that precedent. (In this case, of course, the appellate lawyers simply ignored the precedent altogether.) The ethics rules can forbid you from making a losing argument even where your client really wants you to try.

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[.]

One important element of this rule is that the lawyer must be aware of the adverse precedent. If they knew the law required a 40-year minimum, but failed to cite the law and argued for a lesser minimum, that would be a violation - but it would require a lot of assumptions on Reinhardt's part to reach that conclusion.
2.10.2009 8:06pm
Dave N (mail):
Reading the tea leaves, I'm interested that the parties had different counsel -- that suggests some problems for the defense right there.
I have followed most of your argument (and agree with most of it as well), but that comment did not compute.

Unless Mississippi is different from every other state, two defendants (even brothers) are likely to get different attorneys at all stages, including appeal.

I have no love at all for Judge Reinhardt. That said, I appreciate his advice (via published opinion no less) for attorneys to strongly counsel clients to stop while they are ahead.
2.10.2009 8:14pm
Anderson (mail):
(so-called) "legal ethics."

I can't remember whether Sasha practices law or not, but really -- putting 'legal ethics' in scare quotes?
2.10.2009 8:15pm
traveler496:
Did I get this right:
-the trial court violated sentencing guidelines
-the trial attorney was either as incompetent as the trial court or in violation of ABA rules
-the appellate attorneys were dangerous to their clients, and either as incompetent as the trial court or in violation of ABA rules
-the appellate judge was either incompetent or (having congratulated the trial attorney for violating ABA rules) knowingly advocating professional ethics violations

I liked the appellate judge's writing style though.
2.10.2009 8:38pm
Sasha Volokh (mail) (www):
Anderson: I'm licensed to practice law in D.C., though I've never so far actually practiced law. But yes, I have very very little regard for legal ethics. (Note: After studying for a couple of hours, I got something like a 91 on the MPRE, which is below median (the median is defined at 100) but ethical enough to practice in every state!)

Now if I were defending an accused criminal, would I point out to the judge that my client should have gotten a higher sentence if I discovered that the judge forgot the law? I'm not going to answer that question.

Note, though: Most of my little-regard for legal ethics, though, has to do with restrictions on what kinds of contractual arrangements the lawyer and the client can enter into (e.g. selling claims, sexual contact, waiving fiduciary duties, agreeing not to follow the client's best interests, agreeing to have an unlicensed lawyer), not necessarily duties toward the court and suchlike.
2.10.2009 9:00pm
Bama 1L:
Does ABA Model Rule 3.3(a) apply? I don't think so. Violation must be knowing. These lawyers don't seem to have known much of anything.

Also, the rule basically says that if you know there's an binding authority that contradicts your position, you have to tell the court even if opposing counsel doesn't. You can't knowingly misinform or fail to inform the court as to the law. But there's no requirement to correct the court's own legal errors, is there?

If you did have such a duty, how would you discharge it?
2.10.2009 9:03pm
Bama 1L:
The briefs are indeed on Westlaw. I know neither the substantive law nor what a good criminal brief might look like, so will refrain commenting much. There are no swipes at any court, so that's not it. José's brief does indeed point out that, for a man of his age, the sentence given at trial was effectively life imprisonment.
2.10.2009 9:19pm
Bama 1L:
(By "these lawyers" above I mean everyone involved with the trial--prosecution, defense, and judge--if they indeed missed a widely-understood sentencing rule.)
2.10.2009 9:20pm
OrinKerr:
Aaron Williams writes:
Oren Kerr: (http://www.volokh.com/posts/1234237240.shtml)

Sounds fishy to me, but then I suppose I often have that reaction when the name "REINHARDT" appears on a judicial opinion.

Eugene Volokh: (http://www.volokh.com/posts/1234297705.shtml)

I'm inclined to trust Judge Reinhardt's analysis.

I'm sensing a Conspirator Split.
If so, I'm pretty sure the Supreme Court would resolve the split my way.
2.10.2009 10:02pm
Rock Chocklett:
A lawyer shall not "fail to disclose" controlling legal authority that is adverse to his client and not disclosed by opposing counsel. This is an affirmative duty.

The defense attorney is an officer of the court, sworn to uphold the law. He cannot stand silent while knowing of controlling authority (even authorities against his client) that the judge is missing. This runs counter to "good sense" only if one elevates the adversarial system above the truth-seeking function it is intended to perform.
2.10.2009 10:15pm
Dave N (mail):
Those who read this site regularly know that I am a prosecutor--and a pretty conservative one at that.

But that said, the comments that the defense attorneys somehow had an affirmative duty to say, "Excuse me, your Honor, my client actually should be sentenced to more time than you just ordered" border on the insane.

I do believe that both counsel have an obligation to alert the Court to controlling authority and can't ignore it because it is inconvenient. But this duty does not include making an argument extrapolated from the controlling law.

"The United States Code says X" and "The Sentencing Guidelines say Y" are statements of fact and an attorney is remiss if he is asked and affirmatively misleads the Court on either X or Y.

But to say, "Your Honor, Because the Sentencing Guidelines say Y and the United States Codes says X, you missentenced my client to lesser time than required" is an argument that defense counsel is not required to make.
2.10.2009 10:58pm
Rock Chocklett:
Why does it border on the insane? I don't see anything in the rule or the comments that exempts defense attorneys. The rule is not just that attorneys have a duty not to misrepresent the law; they also have a duty to call the judge's attention to controlling authority -- even if it is against them. The defense attorney is duty-bound to call the judge's attention to the law.

The attorney's duty is to zealously represent their client's interests <i>within the bounds of the law</i>. As a prosecutor, you certainly would have a duty to let the court know if it was missing controlling law favorable to the defendant. It works both ways.
2.10.2009 11:18pm
Rock Chocklett:
After rereading Dave N's post, maybe I should clarify my point. I think defense counsel would have a duty to say something like: "Your Honor, ethical considerations require me to draw your attention to [the controlling authority]." I don't think he would have to (or should) argue that the authority demands a different outcome for his client. If the judge ignores the authority or concludes that it does not apply for some reason, the defense attorney need not object or take it any further.
2.10.2009 11:41pm
Bama 1L:
I think Rock may be conflating the client's "position" with the client's "interest." It's not clear the defendants ever took a position on what the sentencing law was. Even then, you'd have to show actual knowledge.

Also, look at these Arizona resources. (Trial was in Arizona; Arizona has adopted MR 3.3 verbatim, it looks to me.)
2.10.2009 11:43pm
Steve:
As I read the rule, it's simply the flip side of the advocate's duty not to make an argument which is contrary to settled law. Assuming defense counsel is familiar with all the relevant precedent (an assumption probably contrary to fact in this case), they cannot argue for a mandatory minimum of 20 years, hoping the judge will overlook the precedent which actually makes it 40. But if the judge makes a mistake sua sponte, I don't believe counsel is under an obligation to volunteer the correct rule.

I'm really disappointed by Prof. Volokh's comments on legal ethics in general, by the way. That's not an attitude any teacher should be fostering.
2.11.2009 12:13am
Dave N (mail):
Steve,

You made my point. Thanks.
2.11.2009 12:26am
traveler496:
Thanks for clarifying, Bama 1L and Steve. I too had missed the "position of"/"interests of" distinction.
2.11.2009 12:50am
Sasha Volokh (mail) (www):
I'm inclined to agree that you can't misrepresent the law to the court, but you shouldn't bring it up sua sponte if the court messes up in your direction. That's why I don't have so much of a problem with the "honesty" parts of legal ethics. It's mostly the other stuff that I think is screwed up.

By the way, it hasn't come up yet, but I certainly don't feel like I have any obligation to instill a sense of respect in my students for the rules of legal ethics. Respect should be earned by actually, you know, being sensible.
2.11.2009 7:33am
Anderson (mail):
But this duty does not include making an argument extrapolated from the controlling law.

I'll defer to Dave N's experience; the above is clearly correct at *some* point (a chain of reasoning involving 10 authorities), and as always, the line is fuzzy. Dave N draws the line where it's bright &hard to mistake, which may be best.

-- I admit to being curious as to what deficiencies inhere in legal ethics that do not inhere in, say, ethics in general.
2.11.2009 7:49am
Sasha Volokh (mail) (www):
My problems are mostly with various non-disclaimable duties that the lawyer has to the client. For instance, how about a fully informed non-pre-existing sexual relationship between the lawyer and the client? How about an agreement that "I'll represent you but I refuse to make X type of argument"? I'm rusty on my legal ethics, but I vaguely recall that the first is considered unethical and the second is at least frowned on.

My other big category of problems is the more general regulation of entry and economic arrangements. For instance, how about you selling me your entire claim in exchange for a cash payment, and then I can go prosecute the claim and keep whatever I get? This is unethical "champerty"; contingent fee arrangements are a limited exception, and there's also partial subrogation, but the 100% option should be legal and would have various desirable efficiency features as well. Most importantly, there's the whole idea of needing a license to practice law, which I think is awful.

I could probably think of more, but to do that, I'd have to consult some ethics text, which I'm very reluctant to do.
2.11.2009 8:52am
Anderson (mail):
Ah. Those sound like some pretty wideranging problems with the whole ethics/professionalism/duty-to-client array.
2.11.2009 9:30am
Rock Chocklett:
But if the judge makes a mistake sua sponte, I don't believe counsel is under an obligation to volunteer the correct rule. -- Steve

I'm inclined to agree that you can't misrepresent the law to the court, but you shouldn't bring it up sua sponte if the court messes up in your direction. -- Sasha V.

This is not what the rule says. It says a lawyer 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." The whole point of the rule is that if the other side doesn't bring it up, you have an obligation to do so. It is not merely a prohibition of affirmative misrepresentation.

Bama1L, I see your point, but I don't think I'm conflating anything. Certainly defense counsel would have taken a position on how long their client should have been sentenced. If their position was that the client should receive less than X years, and the law required a sentence of greater than X years, they have to bring that law to the court's attention.
2.11.2009 10:28am
Rock Chocklett:
By the way, I can't say that defense counsel in this case were aware of the controlling Supreme Court precedent. But if they were and failed to disclose it, it's a violation of the rule. Maybe we don't like the rule as a policy matter, but I don't see how you can escape the plain language requiring disclosure.
2.11.2009 10:32am
Rock Chocklett:
Bama, I looked up the AZ resources you cited, and there are no ethics opinions expounding on this rule. The comment, however, provides:


A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.


Furthermore, the "fail to disclose" section immediately follows Rule 3.3(a)(1), which prohibits the lawyer from making "a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." If 3.3(a)(2) merely prohibiting affirmative misrepresentation, it would be surplusage.
2.11.2009 10:42am
Bama 1L:
Hi Rock. The point was that whoever drafted that little guide breaking 3.3(a) into four duties thinks that it only applies to the lawyer's own statements. I don't have to correct opposing counsel's or the court's mistakes.
2.11.2009 8:29pm
Stash:
I recently wrestled with the issue on an appellate brief. After discussing it at length with co-counsel, we decided that the case was distinguishable and therefore not directly adverse. The opposition failed to cite it, and we won. The appellants switched lawyers and cited the case on petition for rehearing. The court considered the new authority, but distinguished it and denied rehearing.

I think that deciding what is or is not "directly adverse" can be a tough call. Cases are often large things, that can be characterized as within or outside a whole host of rulings. In my experience, whether a case is "directly on point" is an argument, not a fact.

In this case, though the facts were close, we were proceeding on a different legal theory than the adverse decision. In order to mention the case, we would have had to bring up the question as to whether the other theory was instead properly applicable and explain why it was not. We figured we did not need to anticipate this issue.
2.13.2009 12:02am

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.