ETHICS QUESTION OF THE MONTH
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Hide? Or Seek?
Attorney Gertrude is a well-respected and successful appellate
attorney with a thriving practice. She has been engaged to appeal a
civil district court judgment to a Texas court of appeals. The appeal
turns on whether a particular statute applies to her client. Her
opposing counsel is primarily a trial lawyer, and Gertrude knows that he
rarely handles appeals and is not particularly adept at legal research.
Gertrude is aware of her duty to make the court aware of authority that is contrary to the position that she is arguing, even if her opponent does not disclose that authority. After thorough research, she finds the following cases where the court specifically rejected her position:
1. An opinion from the Supreme Court of another state from six
months ago interpreting an almost identical statute in that state.
2. An unpublished opinion from 2002 issued by another intermediate court of appeals in Texas.
3. A published opinion from another intermediate court of appeals in Texas from 1995.
4. Language from a footnote in a recent Texas Supreme Court opinion that clearly constitutes obiter dicta.
As expected, opposing counsel did not mention any of these cases in his brief. Under the Texas Disciplinary Rules of Professional Conduct, which of these cases is Gertrude required to disclose to the court in her reply brief?
A. Only 3
B. Only 2 and 3
C. Only 2, 3, and 4
D. All of them
Rule 3.03(a)(4) states that “A lawyer shall not
knowingly . . . fail to disclose to the tribunal 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.” While
expert opinion varies somewhat widely on what constitutes “authority in
the controlling jurisdiction,” we can reasonably conclude that:
Out-of-state courts interpreting out-of-state statutes are not “in the controlling jurisdiction.”
Obiter dicta have no precedential value, and, therefore, are likely not subject to Rule 3.03(a)(4).
Unpublished opinions before 2003 do not have precedential value, and, therefore, do not need to be cited. (Tex. R. App. P. 47.7).
The decision from a different court of appeals in Texas is not binding on Gertrude’s court, but it may be persuasive authority. If we assume that all of Texas is “the controlling jurisdiction,” counsel should disclose adverse authority from a sister court interpreting Texas law. At least one Texas court of appeals has so stated. See Jones v. WKB Value Partners, No. 04-07-00865-CV, 2008 WL 2261192, at *2 n.1 (Tex. App.—San Antonio June 4, 2008, no pet.) (“Counsel are reminded of their obligation to alert the court of contrary authority,” referring to “this court, as well as several of our sister courts”).
The correct answer is A.
A caveat: As always, this is a discussion of what the rules require, i.e., the bare minimum standard of conduct. What an attorney must do and what she should do are not always the same. An attorney’s professional obligations of honesty and candor suggest that an advocate should raise and effectively address any adverse authority in which the court would reasonably be interested, regardless of jurisdiction or precedential value. For further analysis of this issue, go to legalethicstexas.com. .TBJ
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The Texas Center for Legal Ethics was created by three former chief justices of the Supreme Court of Texas to educate lawyers about ethics and professionalism. Lawyers can access the Texas Disciplinary Rules of Professional Conduct, the Texas Lawyer’s Creed, and a variety of other online ethics resources by computer or smart device at legalethicstexas.com.
The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts. For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including the official comments) and other authorities and/or a qualified legal ethics adviser.