 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Tyler v. State9/14/2001
on that the lawyer knew of no adverse authority?
This ethics opinion was issued in June 1949. The Committee was not discussing current Professional Conduct Rule 3.3(a)(3), but rather a predecessor rule, Canon 22 of the Canons of Professional Ethics adopted by the American Bar Association in 1908. However, the Committee has since declared that the same test applies to Professional Conduct Rule 3.3(a)(3).
In March 1984, the American Bar Association's Committee on Ethics and Professional Responsibility issued Informal Opinion No. 84-1505, in which the Committee discussed a lawyer's duty under Rule 3.3(a)(3) to disclose a decision of a controlling court "which may be interpreted as adverse to his client's position". The Committee concluded that the lawyer was obligated to disclose the decision, although the lawyer could " f course ... challenge the soundness of the other decision, attempt to distinguish it from the case at bar, or present other reasons why the court should not follow or even be influenced by it." The Committee explained that this question was governed by the test the Committee had earlier announced in Formal Opinion 280:
Rule 3.3(a)(3) of the Model Rules of Professional Conduct provides, "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." This provision is virtually identical to its predecessor, DR 7-106(B)(1) of the Model Code of Professional Responsi-bility. Both provisions continue essentially unchanged the theme of Canon 22 of the Canons of Professional Ethics adopted by the American Bar Association in 1908.
Under Canon 22, this Committee issued two opinions bearing on the question presented. In 1935 the Committee decided that a lawyer has a duty to tell the court in a pending case of decisions, unknown to his adversary, that are adverse to his client's contentions. We said, "He may, of course, after doing so, challenge the soundness of the decisions or present reasons which he believes would warrant the court in not following them in the pending case." In 1949, the Committee, in Formal Opinion 280, first interpreted Opinion 146 to limit the duty of disclosure to only those decisions which were "directly adverse." We then continued:
We would not confine the Opinion to "controlling authorities" - i.e., those decisive of the pending case - but ... would apply it to a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case.
The Committee then concluded that, in the case before them, the lawyer was duty-bound to disclose a court decision that could reasonably be interpreted as directly contrary to his position:
Under one interpretation of the decision, it is clearly "directly adverse to the position of the client." And it involves the "construction of a statute on which there is a dearth of authority."
The issue is potentially dispositive of the entire litigation. [A lawyer's] duty as an officer of the court to assist in the efficient and fair administration of justice compels plaintiff's lawyer to make the disclosure immediately.
In a strikingly similar case, Seidman v. American Express Company, 523 F. Supp. 1107 (E.D. Pa. 1981), the court, applying DR 7-106(B)(1), came to the same conclusion on the duty to disclose as does the Committee in this opinion. There a trial court commended defendant's lawyer for calling attention, after oral argument, to a recent case that severely undercut the position defend
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|