We are told that California Rules of Professional Conduct are rules for discipline. And yet there are many Rules of Professional Conduct that are never, as far as can be determined, formed the basis for any discipline. In fact, these Rules largely serve an advisory role, giving lawyers notice of what the expected norms of professional conduct are. This distinction is more explicitly spelled out in the American Bar Association Model Rules of Professional Conduct in the Preamble section 14: “The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role.” But ultimately, it is the possibility of professional discipline that gives the Rule force.
A lawyer shall not:…
(2) 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 book, statute, decision or other authority
Rule 3.3(a)(2) was adopted in November 2018, part of the extensive revision of the California Rules of Professional Conduct to conform more closely to the American Bar Association Model Rules of Professional Conduct and adopts the text of Model Rule 3.3(a)(2), along with a second clause derived from former California Rule of Professional Conduct 5-200(c). Given the recent adoption of the Rule, it is not surprising that it has not been the object of any discipline enforcement. The model Rule, though, has been cited in the unpublished decision in Martin v. Stenger, a 2014 decision from the First Appellate Dist., Div. 2, (2014 WL 2211719).
Although California has not adopted the Model Rules, courts and [attorneys] find the rules … helpful and persuasive in situations where the [California rules] are unclear or inadequate.’ (1 Witkin, Cal. Procedure, supra, Attorneys, [§ 407, p. 521.] ) We are one of those courts. (See generally Fortune et al., Modern Litigation and Professional Responsibility Handbook (2001) § 8.5.1, pp. 329–330 [‘The obligation to disclose adverse legal authority is an aspect of the lawyer’s role as “officer of the court.” … lawyers should reveal cases and statutes of the controlling jurisdiction that the court needs to be aware of in order to intelligently rule on the matter. It is good ethics and good tactics to identify the adverse authorities, even though not directly adverse, and then argue why they are distinguishable or unsound. The court will appreciate the candor of the lawyer and will be more inclined to follow the lawyer’s argument’].)” We do not imply that either counsel acted knowingly or intended to mislead when they failed to cite Yang. We nevertheless remind counsel of their obligation.Martin v. Stenger, unpublished slip opinion at pages 2-3
Williams involves a failure by counsel to cite what the Court of Appeal deemed controlling authority in the appeal, specifically case law finding the subject order not appealable. The decision reveals the frustration the Court of Appeal found with the lawyer’s response to the Court’s direction to submit a letter brief on the issue of whether Rule 3.3(a)(2) had been violated, frustration which led the Court of Appeal to make this a published decision with a stern warning:
An attorney who prosecutes an appeal while failing to cite known authority that this court has no jurisdiction to entertain it violates the attorney’s duty of candor (where the authority is not otherwise brought to the attention of the court by another party to the appeal). Any such future violation, in the view of this court, may warrant disciplinary review by the State Bar or other corrective action.People v. Williams, slip opinion at page 14-15
In adopting much of the ABA Model Rules, California has taken many of their “constitutive and descriptive” precepts and made them enforceable through the disciplinary process. Of course, the California Rules of Professional Conduct, although emphasizing their provenance as discipline rules since their original adoption in 1928, have always contained a lot of similar material, especially after the California Rules were re-written in response to the ABA Code of Professional Responsibility in 1975. But the Big Stick is always present, and the current mood of the discipline enforcers in the Office of Chief Trial Counsel means the discipline can never be ruled out. California lawyers who have not read the latest revision of the Rules of Professional Conduct practice are at some risk. Just ask the Second District Court of Appeal.