Adverse authority

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Adverse authority or adverse controlling authority, in United States law, is some controlling authority based on a legal decision and opposed to the position of an attorney in a case before the court. The attorney is under an ethical obligation to disclose that legal decision, which is an adverse authority, to the court. This obligation is set forth in the American Bar Association Model Rules of Professional Conduct, §3.3. [1]

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The United States of America (USA), commonly known as the United States or America, is a country composed of 50 states, a federal district, five major self-governing territories, and various possessions. At 3.8 million square miles, the United States is the world's third or fourth largest country by total area and is slightly smaller than the entire continent of Europe's 3.9 million square miles. With a population of over 327 million people, the U.S. is the third most populous country. The capital is Washington, D.C., and the largest city by population is New York City. Forty-eight states and the capital's federal district are contiguous in North America between Canada and Mexico. The State of Alaska is in the northwest corner of North America, bordered by Canada to the east and across the Bering Strait from Russia to the west. The State of Hawaii is an archipelago in the mid-Pacific Ocean. The U.S. territories are scattered about the Pacific Ocean and the Caribbean Sea, stretching across nine official time zones. The extremely diverse geography, climate, and wildlife of the United States make it one of the world's 17 megadiverse countries.

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

The ABA Model Rules of Professional Conduct, created by the American Bar Association (ABA), are a set of rules that prescribe baseline standards of legal ethics and professional responsibility for lawyers in the United States. They were promulgated by the ABA House of Delegates upon the recommendation of the Kutak Commission in 1983. The rules are merely recommendations, or models, and are not themselves binding. However, having a common set of Model Rules facilitates a common discourse on legal ethics, and simplifies professional responsibility training as well as the day-to-day application of such rules. As of 2015, 49 states and four territories have adopted the rules in whole or in part, of which the most recent to do so was the Commonwealth of the Northern Mariana Islands in March 2015. California is the only state that has not adopted the ABA Model Rules, while Puerto Rico is the only U.S. jurisdiction outside of confederation has not adopted them but instead has its own Código de Ética Profesional.

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Basis for the disclosure requirement

The obligation to disclose adverse authority is in tension with the attorney's obligation to zealously represent the interests of the client. However, various public policy arguments have been set forth to explain why the attorney's duty of candor to the court with respect to such authority outweighs the duty to the client's cause. Ostensibly, the reason is to serve the law itself by preventing a court from making a decision that is erroneous in light of the authority revealed. [2]

Public policy is the principled guide to action taken by the administrative executive branches of the state with regard to a class of issues, in a manner consistent with law and institutional customs.

As a practical matter, an attorney who discovers adverse authority and fails to disclose it to the court may lose credibility with the court if the authority is found by opposing counsel, or by the court itself. The court may presume that an attorney who fails to disclose such authority has either been unethical in failing to disclose it, or has acted without diligence in failing to discover it. Moreover, the attorney disclosing such authority has the opportunity to frame the disclosure in a manner that seeks to diminish the impact of that authority by presenting arguments as to why it is inapplicable to the facts of the current case, or should be overturned altogether.

What must be disclosed

In order to fall within the obligation for disclosure, the matter must meet three conditions: it must be legal authority, it must be directly adverse, and it must be from a controlling jurisdiction. [2]

Legal authority

The matter for which disclosure is compelled must be a matter of decided law, rather than a mere opinion rendered by an academic. For example, where an attorney is arguing that a certain transfer of assets should be permitted in a bankruptcy proceeding, that attorney need not disclose a law review article, casebook, or op-ed piece in which the author argues that exactly such a transfer of assets should never be permitted. Such a writing need not be disclosed even if the author of the article is a leading expert on the area of law, and the article contains strong and well-written arguments in support of the position.

A law review is a scholarly journal focusing on legal issues. Law reviews are a type of legal periodical. In the US, law reviews are normally published by an organization of students at a law school or through a bar association. Outside North America, law reviews are usually edited by senior academics/faculty.

A casebook is a type of textbook used primarily by students in law schools. Rather than simply laying out the legal doctrine in a particular area of study, a casebook contains excerpts from legal cases in which the law of that area was applied. It is then up to the student to analyze the language of the case in order to determine what rule was applied and how the court applied it. Casebooks sometimes also contain excerpts from law review articles and legal treatises, historical notes, editorial commentary, and other related materials to provide background for the cases.

An op-ed, short for "opposite the editorial page" or "opinion editorial", is a written prose piece typically published by a newspaper or magazine which expresses the opinion of an author usually not affiliated with the publication's editorial board. Op-eds are different from both editorials and letters to the editor.

Conversely, adverse authority does extend to binding legal materials other than court decisions, including statutes, local ordinances, and decisions of administrative bodies having adjudicative authority. [2]

Directly adverse

The requirement that the authority be directly adverse has been a source of uncertainty. Attorneys are keen to distinguish adverse authority by finding sufficient differences in the facts of previous adverse cases to argue that the previous case does not apply to the current situation. Such argument essentially seeks to present the prior authority as not being adverse at all, because it applies to sufficiently different facts. In order to counter the tendency of attorney's to diminish the precedential value of adverse authority, such authority is weighed by an objective standard in determining whether it should be disclosed. The standard is whether the judge sitting on the case would consider the authority to be important, or if she would feel misled if the authority were not disclosed. [2]

Controlling jurisdiction

Adverse authority from another jurisdiction need not be disclosed. In state courts, that generally includes cases decided by courts of other states. In federal district courts, that generally includes cases decided by district courts in other federal districts, and by the federal courts of appeal other than the particular court of appeal that the district court falls under. State court decisions need not be reported to federal courts unless the federal court is deciding a matter that falls under state, rather than federal, law; decisions of federal courts other than the Supreme Court of the United States need not be reported to state courts. [2]

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References

  1. ↑ See, e.g. American Bar Association, Annotated Model Rules of Professional Conduct (2003), p. 335.
  2. 1 2 3 4 5 Geoffrey C. Hazard, W. William Hodes, John S. Dzienkowski, The Law of Lawyering (2000), §29-11.
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