Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyMedium
A lawyer is representing a client in a civil appeal before a three-judge panel. During oral arguments, the lawyer cites a recent appellate court decision that supports the client's position. The lawyer is aware of a very recent, directly controlling Supreme Court decision that effectively overrules the appellate court case cited, but the Supreme Court decision has not yet been widely published and is not cited by opposing counsel. What is the lawyer's ethical obligation regarding the Supreme Court decision?
- AThe lawyer has no obligation to disclose the Supreme Court decision, as opposing counsel has not found it.
- BThe lawyer should only disclose the decision if it is favorable to the client's case.
- CThe lawyer must disclose the Supreme Court decision to the tribunal, even if it is adverse to the client's position.
- DThe lawyer should wait to see if the judges ask about more recent controlling authority.
Show answer & explanationAnswer & explanation
Correct answer: C. The lawyer must disclose the Supreme Court decision to the tribunal, even if it is adverse to the client's position.
A lawyer has a duty of candor toward the tribunal, which includes disclosing controlling legal authority known to the lawyer to be directly adverse to the client's position and not disclosed by opposing counsel. This ensures the court has all relevant legal information to make an informed decision.
Why the other options are wrong
- A. This violates the duty of candor; lawyers must ensure the court is aware of controlling adverse authority.
- B. The duty of candor requires disclosure of adverse controlling authority, not just favorable authority.
- D. Waiting for the judges to discover controlling adverse authority on their own is a breach of the lawyer's proactive duty of candor.
Candor to Tribunal (Adverse Authority)
A lawyer shall not knowingly 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.
- Applies to 'controlling' legal authority.
- Must be 'directly adverse' to the client's position.
- Only required if 'not disclosed by opposing counsel'.
Memory trick: Adverse controlling law must be shown, not hidden.