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January 24, 2012
Concerns About Ethical Advocacy

            An attorney must conduct preliminary legal research to determine whether an anticipated claim or defense would be frivolous in view of established controlling law.  An attorney’s signature on a pleading constitutes the attorney’s certification that he/she has read the pleading, motion, or legal memorandum, and that to the best of the attorney’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

  1. it is well grounded in fact;
  2. is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law;
  3. it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
  4. the denials of  factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Ethical principles dictate the same result.  Washington’s Rules of Professional Conduct require that a lawyer shall not knowingly:

  1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
  2. fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by Rule 1.6;
  3. 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; or
  4. offer evidence that the lawyer knows to be false.

Thus, an attorney has an obligation to be candid with the Court, even when doing so may be to the detriment of his/her client.

            There is no bright-line rule for what qualifies as sufficiently “candid.”  However, it is clear that completely ignoring adverse precedent is a patent violation of court and ethics rules.  The importance of this maxim is exemplified in a recent Seventh Circuit opinion, Gonzalez-Servin v. Ford Motor Co., et al.  This case involves two consolidated appeals in which the controlling authority was another Seventh Circuit case, Abad v. Bayer Corp.

            In the first of the consolidated cases, the appellants failed to cite Abad in their opening brief. In their response, the defendants cited Abad repeatedly and stated accurately that its circumstances were “nearly identical” to those of appellant’s case.  Yet in their reply brief, appellants not only failed to distinguish Abad, but refused to cite to it at all.  In the second consolidated case, defendants heavily relied upon Abad and a similar case, Chang v. Baxter Healthcare Corp.  Yet again, the appellants in this second matter refused to acknowledge the existence of Chang, and the only discussion of Abad was brief and factually inaccurate.

In affirming both underlying cases, the Court offered the following analysis:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. . .

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”

The opinion went on to include photographs of an ostrich and an attorney with their respective heads buried in sand.

            This case serves as a lesson to both attorneys and parties to litigation:  a case will not be won by wishing away harmful case law.  Ignoring such cases will not serve a party’s interests and will likely result in damaging the credibility of both attorney and the party.  The better strategy is to construct a clever way to distinguish a case.  If you are party to a lawsuit or are contemplating a lawsuit, Eisenhower’s litigation attorneys welcome the opportunity to discuss the merits of your claims and/or defenses. 

Disclaimer

This advisory is a publication of Eisenhower Carlson PLLC. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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