Candor with the Court: No better Way to Proceed
by Joseph M. Cox
A lawyer only has one career. It should be remembered that practicing law is a profession in which a lawyer’s reputation will be built up (and torn down) throughout the course of one’s long career. Because you only have one reputation, you should take special care in developing one of utmost candor with the court.
Rule 3.03 of the State Bar Rules, Rules of Professional Conduct—“Candor Toward the Tribunal”--is our guide to candor with the court. This Rule sets forth that a lawyer should not knowingly “(1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal 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 (5) offer or use evidence that the lawyer knows to be false.”
I believe all lawyers know that they should not make false statements or withhold unprivileged facts from the court, but I do not believe most lawyers understand the duty and obligation to cite controlling authority on a legal issue even if the opposing lawyer does not cite it. It is unacceptable for a lawyer to hope that the opposing lawyer will not find the case that is right on point. Likewise, it is not ok for the lawyer to turn a blind eye to controlling authority.
A lawyer’s duty is to cite the controlling authority, even if it hurts your client, and then argue to the court why the controlling authority does not apply to the facts of the case at hand. While zealous advocacy should be applauded, being a zealous advocate does not entitle the lawyer to forget or ignore her obligations to the court and this great profession. And, when a lawyer cites to the controlling authority that her opposing counsel failed to cite, judges will gain a new respect for that lawyer and remember her for many years to come.
Judge Royal Furgeson has this to say about candor with the court. “Straight-forward candor with the court always enhances credibility and respect, especially when it acknowledges some imperfection in the lawyer’s argument or admits to contrary authority. I say ‘straight-forward’ because some lawyers try to feign candor by talking around the question, which is not candor at all.”
Judge Carlos Cortez remembers very well when a lawyer cited adverse controlling authority when his opposing counsel failed to cite the controlling case. This lawyer cited the controlling authority and then argued why the controlling authority did not apply. As Judge Cortez states, “A lawyer can gain so much respect from the Court when he or she cites controlling adverse authority. It is refreshing and it shows that there are lawyers out there who know their ethical obligations. Candor with the court is vital to the profession and vital to the court. The court needs to know the controlling law out there so that the court can consider it and make an appropriate ruling.”
Judge Barbara Lynn gives this advice, “It is unfortunate if lawyers think they can pull the wool over the court’s eyes. The judge will long remember the lawyer that cites adverse authority and then distinguishes it. Likewise, the judge will long remember the lawyer that does not cite relevant case law. It is better for the lawyer to cite adverse case law than for the court to find it on its own—and assume that the court will find it.”
Finally, Judge Craig Smith summed candor with the court in this manner, “I believe that all the judges at the courthouse put candor at the top of the list for qualities of a lawyer. Being well prepared is also important but if you are less than candid with the court this will come to light sooner or later. A lawyer’s reputation is his or her greatest asset. Once damaged, it is very difficult to repair.”
I found only one reported Texas case that referenced candor with the court. This case involved sanctions against a lawyer for misstating facts and, thereby, failing to have candor with the court. Do you think this lawyer will be viewed highly by the court? May you always have candor with the court and may your long career be marked with distinction and honor. Honor to yourself, honor to the profession and honor to the judicial system.
Joseph M. Cox is a partner at Bracewell & Giuliani, LLP and the former judge of the 160th Judicial District Court of Dallas County, Texas. He can be reached at email@example.com.