Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyHard
A lawyer is representing a client in a civil appeal before a three-judge panel. During oral arguments, one of the judges mistakenly refers to a key precedent from a different jurisdiction as binding authority in the current case. The lawyer knows this precedent is not binding and, in fact, is distinguishable on several grounds. The opposing counsel does not correct the judge's misstatement. What is the lawyer's ethical obligation?
- AAllow the judge's misstatement to stand, as it appears to favor the client's position.
- BTactfully correct the judge's misstatement, even if it potentially weakens the client's immediate advantage.
- CAddress the misstatement in a post-argument submission, after the oral argument has concluded.
- DWait for the opposing counsel to correct the judge, as it is their responsibility if it harms their case.
Show answer & explanationAnswer & explanation
Correct answer: B. Tactfully correct the judge's misstatement, even if it potentially weakens the client's immediate advantage.
A lawyer has a duty of candor toward the tribunal, which includes correcting a tribunal's misapprehension of a material fact or law, even if doing so might seem to disadvantage the client in the short term. This duty overrides the immediate tactical advantage.
Why the other options are wrong
- A. Allowing the misstatement to stand violates the duty of candor toward the tribunal, as it involves a material misapprehension of law by the court.
- C. Delaying the correction until a post-argument submission might be too late to influence the judges' immediate understanding during the critical oral argument phase.
- D. The duty of candor is individual; a lawyer cannot rely on opposing counsel to correct the court's errors, especially if the error benefits their client.
Candor Toward the Tribunal (Law)
A lawyer must not knowingly make a false statement of law to a tribunal, nor fail 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.
- Applies to statements of law and fact.
- Duty to correct misapprehensions by the court.
- Duty to disclose adverse controlling legal authority.
Memory trick: For the 'COURT's' true 'UNDERSTANDING', 'CANDOR' is the 'LAW'yer's guiding star.