Mark Dubois
Mark Dubois ()

I recently had the privilege of working with two judges on different CLE programs, both dealing with the issue of candor to the tribunal. It’s a sticky, tricky subject — both for the bench and the bar.

The immediate thought most lawyers have when asked about the topic is citing adverse authority. That’s probably because our law school professors drummed it into our heads that judges need our help to get all the law on a topic so that they can make correct decisions. For my money, that part of the rule is probably outdated.

I doubt any judge deciding any matter of any significance—in either state or federal court—needs the lawyers to do the research for him or her. Yes, the parties’ briefs are a good place to start, but with the advent of computer-assisted legal research, it’s pretty easy for a diligent judge to quickly test the bona fides of any argument and to figure out what the proper rule to apply is. I think the trickier stuff deals with informing the court of stuff that it is not likely to discover but which might be important to know.

For instance, if a judge asks you a question, you’ve got to tell the truth, no matter now damning that may be to the client’s case. But what if the judge doesn’t ask, but just announces that she or he is going to do something that you know is in error? I was before a very good judge a few years ago who was clearly swayed by my opponent’s argument in an administrative appeal to remand the case to the agency which I represented. He asked the appellant whether he had that authority, and the appellant’s lawyer cited a case attached to his brief (remember when we had to staple unreported cases onto briefs?) where another judge had done just that.

“Hold on, judge” I said. “You can’t do that.” I then explained that there had been a recent Supreme Court case that said if my client had gotten it wrong, there was no “second bite at the apple.” The only remedy was sustaining the appeal. The judge asked for the citation and we broke for lunch. By 1:45, I had briefed and e-filed an argument why the case did not apply. At 2, I argued that the case should be distinguished. By 2:15 judgment for the appellant had entered. Pretty strong medicine, but I really had no other choice under the circumstances.

While working on one of the CLEs, someone asked me how lawyers should balance their duties to the forum with their duties to their clients, especially when it came to information that the client had which might sway the outcome. “Candor trumps confidentiality,” I offered. The judge liked that and used it in the presentation. My response to the audience, who looked a bit surprised (even though it’s pretty much right in the rule), was that in any close call, a court is always going to trust that you are not tricking them and you understand that if it has all the proper information, it’ll get it right.

Yes, we have a duty of loyalty to our clients, but we’re also officers of the court. Hiding the ball is frowned on in sports and law. The challenge comes in the grey areas. I got a call from a former student who was in a dispute with a senior lawyer as to whether he must, or should, disclose nonbinding damaging authority in a brief. Well, I replied, the rule doesn’t require you to disclose only binding authority, but any authority in the binding jurisdiction.

Thus, a decision of a judge of co-equal authority to the one deciding the case, while only persuasive authority, probably must be disclosed as required by the rule. I say probably because many commentators read the rule as to require only binding authority be disclosed. A more practical reason for disclosing it is, as I said above, most judges are going to do (or have someone else do) some research on the issue anyway, and I’d rather disclose and distinguish bad authority than have it go unanswered, even if my opponent missed it.

A lot of this deals with the art as much as the practice of good lawyering. It can be tricky. (Don’t even get me started on the issue of when you have a duty to tell a judge a witness is probably not being truthful.) In the end, the successful advocate will figure how to work with the facts and law to obtain the best result. You might not always win doing it that way, but you’ll always lose if you’re caught hiding the ball.