TLIE Top Tip: Candor
TLIE Top TipsMost lawyers know that they have a duty of candor to a tribunal, and this means they cannot misrepresent the law or the facts to the court. However, it also means disclosing when the law is directly adverse to your client’s position.
Texas Disciplinary Rule of Professional Conduct 3.03(a)(4) states that a lawyer “shall not 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.” A lawyer cannot lay behind the log of “well, it’s a case for the other side, and they didn’t bring it up.” Instead, the lawyer must bring it up. Bringing it up not only fulfills the duty of candor, but it also gives the lawyer the opportunity to confront it and distinguish it. Comment 3 to Rule 3.03 explains the purpose of this disclosure: “legal argument is a discussion seeking to determine the legal premises properly applicable to the case.” It may be uncomfortable to have to tell the judge there is an opinion directly adverse to your client’s position. But it’s even more uncomfortable to be called on the carpet for failing to do so. That failure violates Rule 3.03(a)(4) and can result in sanctions against the lawyer as well as a disciplinary complaint.
To avoid inadvertently failing to comply with Rule 3.03(a)(4), lawyers should read the cases they are relying upon (not just cut and paste from another source), check for contrary and opposing authority, check for any subsequent legal authority that addresses, distinguishes or overrules any of the authority relied upon in support of the client’s position, and read the cases cited by opposing counsel. Due diligence in this respect will save you from embarrassment (at a minimum), and will make you even more prepared for your client’s matter.
