Mediation Message No. 146


On November 1, 2018, new Rules of Professional Conduct become effective for all California lawyers. This Mediation Message analyzes rule 3.3, Candor Toward the Tribunal (i.e., a court, arbitrator, administrative law judge, administrative body acting in an adjudicative capacity and special master; note, “tribunal” does not include mediators). Rule 3.3 replaces rule 5-200. Parts of the new rule in effect follow rule 5-200: subd. (a)(1) prohibits making a false statement of fact or law or failing to correct the falsity; subd. (a)(3) prohibits offering evidence that the lawyer actually knows to be false and also requires the lawyer to take reasonable remedial measures to correct that falsity, when it becomes known and subd. (b) requires a lawyer to take reasonable remedial measures when he or she actually knows that a client or witness has offered material evidence that is false. These provisions reflect existing case law or the Model Rules, or both.

Rule 3.3, subd. (a)(2) and subd. (d) deserve special attention because they are not in the existing Rules of Professional Conduct. Subd. (a)(2) states that “A lawyer shall not 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 knowingly misquote to a tribunal the language of a statute, decision or other authority.” In other words, the italicized portion requires lawyers to disclose known controlling legal authority that is directly adverse to their clients’ positions, which has not been disclosed by opposing counsel, even if opposing counsel is present and the attorneys know or suspect that opposing counsel is aware of that authority. This rule, in effect, penalizes attorneys who are prepared and rewards those who have not fully researched the law. It also raises several unresolved issues: does the disclosure obligation exist if the attorney knows that the tribunal is aware of the controlling authority (from, as an example, a prior hearing or prior points and authorities); does the controlling authority include law which is persuasive (such as federal common law in a state proceeding) but not determinative or binding (in other words, its adverse effect is questionable); is a controlling appellate decision that is “on all twos” or “threes” (and, therefore,  arguably distinguishable) “directly adverse” to a party’s position and does the disclosure obligation exist if the motion is unopposed? None of these questions have been answered.

Subd. (d) requires a lawyer in an ex parte proceeding, where the opposing party is not present, to inform the tribunal of all known material facts, even if adverse, that will enable the tribunal to make an informed decision. This standard codifies existing California Supreme Court decisions and addresses the inherent unfairness when an opposing party, for whatever reason, fails to appear at an ex parte proceeding.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, March 2018

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