19.03. Duty to Disclose Adverse Law [Rule 3.3(a)]

On one level, a just as a lawyer cannot make a false statement of fact to a tribunal, a lawyer also cannot make a false statement of law.

Cofield represented a plaintiff in a medical malpractice suit.  As part of the suit, Cofield sent a medical release authorization to the medical provider.  The medical provider sought payment for copying the records.  In her response (and in subsequent pleadings), Cofield misquoted the section of HIPPA regarding fees that could be charged.  At a hearing the judge discovered what Cofield had done and reported her to the disciplinary authority.  Has Cofield acted unethically? [Cofield v. Virginia State Bar, 827 S.E.2d 602 (Va. 2019)]

Yes.  Cofield violated Rule 3.3(a)(1) by making a false statement of law to the tribunal. 

When it comes to law that is adverse to the client’s position, however, it presents a different calculus than facts.  While the lawyer has no ethical obligation to volunteer adverse facts, there is an obligation to disclose “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.”[1]  The purpose of this requirement is to ensure that the court has all relevant legal authority when deciding an issue.  In this situation the judicial system’s interest in a correct outcome trumps the client’s desire/interest in keeping the adverse law confidential.

There are practical/strategic reasons that a lawyer should acknowledge adverse authority – and then seek to distinguish the authority from the client’s case.  A lawyer who fails to reveal adverse information harms their credibility with the court, and may find that the court is more skeptical of other statements made by the lawyer.  In a case in which a lawyer failed to reveal adverse authority, Judge Posner on the Seventh Circuit closed his opinion with these words (immediately before a picture of an ostrich with its head in the sand):  “The ostrich is a noble animal, but not a proper model for an appellate advocate. . .  The ostrich-like tactic of pretending that potentially dispositive authority against a litigator’s contention does not exist is as unprofessional as it is pointless.”[2]  In short, it may harm the client’s case more for a court to discover adverse authority that the lawyer should have addressed.

[1] ABA Rule 3.3(a)(2).

[2] Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7^th Cir. 2011)(internal quotation marks omitted).