Imagine this scenario: while doing legal research for an upcoming court hearing, you discover an obscure ruling that is directly on point and a game-changer.
Unfortunately, it hurts your case and helps the other side. What should you do?
- Forget about the ruling and hope your opponent doesn’t find it.
- Swear off all future research
- Disclose the adverse authority to the presiding judge.
If you answered (c) congratulations. You win the Ethical Lawyer Laurel.
In July, the NC State Bar issued 2018 Formal Ethics Opinion 2 (Duty to Disclose Adverse Legal Authority), which says:
“[A] lawyer has a duty to disclose to a tribunal adverse legal authority that is controlling as to that tribunal if the legal authority is known to the lawyer and is not disclosed by opposing counsel.”
The opinion interprets Rule of Professional Conduct 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.”
Under What Authority?
In 2018 FEO 2, the ethics committee said an attorney must inform the court about all authority “that is controlling as to that tribunal.” This includes court decisions, statutes and regulations adverse to a client’s position. You don’t have to inform the tribunal of authority that is not controlling.
“The lawyer must make a legal determination as to the legal authority that is controlling for the particular tribunal,” 2018 FEO 2 states. “Rule 3.3 Candor Toward the Tribunal sets forth the duties of lawyers as officers of the court ‘to avoid conduct that undermines the integrity of the adjudicative process.’ Rule 3.3, comment . Preserving the integrity of the adjudicative process is consistent with the principle of stare decisis.”
The duty of disclosure kicks in when:
- You know about the legal authority.
- It is adverse to your client’s position.
- The authority is not disclosed by opposing counsel.
Litigation Costs, Web Directories
Here are four other ethics rulings approved by the State Bar at its July 2018 meeting:
- Participation in Website Directories and Rating Systems that include Third Party Reviews (2018 FEO 1). Opinion explains when a lawyer may participate in an online rating system, and a lawyer’s professional responsibility for the content posted on a profile on a website directory.
- Use of Suspended Lawyer’s Name in Law Firm Name (2018 FEO 3). Opinion rules that the name of a lawyer who is under an active suspension must be removed from the firm name within a reasonable period of time.
- Offering Clients On-site Access to Financial Brokerage Company for Legal Fee Financing (2018 FEO 4). Opinion rules that a lawyer may offer clients on-site access to a financial brokerage company as a payment option for legal fees so long as the lawyer is satisfied that the financial arrangements offered by the company are legal, the lawyer receives no consideration from the company, and the lawyer does not recommend one payment option over another.
- Shifting Cost of Litigation Cost Protection Insurance to Client (2018 FEO 5). Opinion rules that, with certain conditions, a lawyer may include in a client’s fee agreement a provision allowing the lawyer’s purchase of litigation cost protection insurance and requiring reimbursement of the insurance premium from the client’s funds in the event of a settlement or favorable trial verdict.
Read the full text of the above opinions, as well as other recent ethics actions, here.
Jay Reeves practiced law in North Carolina and South Carolina. During the course of his 35- year career, he has been a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms succeed through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations (www.yourlawlife.com). Contact firstname.lastname@example.org or 919-619-2441 to learn how Jay can help your practice.