January 2009 • Vol. 29 No. 1 | An E-Publication of the Los Angeles County Bar Association

Ethics and Professionalism in Legal Argument: When Does Zealous Advocacy Cross the Line?

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations.

The old saw teaches that when the facts are against you, argue the law; when the law is against you, argue the facts. When both are against you, bang the table. And banging the table—even with your head—is a better move than trying to play Three-Card Monte with the authorities. That game is prohibited by the ethical duty of candor,1 which obligates advocates to disclose to the court 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. As the drafters explain, “The underlying concept is that legal argument is a discussion seeking to determine the legal premises applicable to the case.”2 Sounds civil enough.

But zealous advocates do not view their role as contributing to polite conversation about fascinating legal theories. They want to wield authorities with sharp points and dangerous edges, to cut through the fat and lay bare the issue. Given these dangerous tools, all the more reason for candor; reckless handling of the authorities can do serious damage. Consider two dramatic instances of overzealous advocacy highlighted in Melissa Weresh's excellent book, Legal Writing: Ethical and Professional Considerations.3

Does the Duty Extend Only to Controlling Decisions?

The first case, Tyler v. State,4 clarifies the obligation to cite directly adverse authorities not disclosed by opposing counsel. In Tyler, attorney Cyrus represented the defendant in a DUI case, Tyler's third DUI in five years. Under an Alaska version of “Three Strikes,” the third DUI in five years is automatically a felony. Absent two priors, the DUI is a misdemeanor.

To escape the felony, attorney Cyrus attacked the prior convictions in the trial court arguing that Tyler had not knowingly waived his right to counsel before pleading no contest. Under a procedural precedent, Cooksey v. State, 524 P. 2d 1251, 1255-57 (Alaska 1974), Cyrus then persuaded the trial court to allow Tyler to plead no contest to the current DUI while reserving the right to appeal the prior convictions. The court allowed the Cooksey plea, and since the prior convictions were now on appeal, the current DUI was deemed a misdemeanor. Under Cooksey, Cyrus then proceeded with the appeal of the priors.

During the appellate process, the state discovered that in representing Tyler, Cyrus had not cited McGhee v. State,5 neither to the trial court nor to the court of appeal. In McGhee, the Division of Motor Vehicles revoked McGhee's license because he had a third DUI. After the revocation, McGhee's counsel filed a motion in court attacking the prior DUI convictions on the ground that the court had failed to advise McGhee of his right to a jury trial. The motion was granted, McGhee was allowed to withdraw his no-contest pleas, to then re-plead no contest and have new convictions entered on the record.

Now that the “priors” had been magically transformed into “subsequents,” McGhee's counsel returned to the Division of Motor Vehicles where he argued that the revocation should be set aside because McGhee had no prior convictions. The administrator rejected this creative argument. On appeal, the Supreme Court affirmed and, in its published opinion, rejected the Three-Card Monte argument that McGhee had no prior DUIs.

Although the state had not cited McGhee, the court had little doubt that Cyrus should have done so. Cyrus had represented McGhee. Evidently, Cyrus's motto was “If at first you don't succeed, try, try again...but don't tell the court about the first decision.”

The Tyler court closely analyzed the language of Rule 3.3 and held that Cyrus' failure to cite McGhee was an ethical violation. A lawyer's duty is not limited to citing only “controlling” or “dispositive” adverse authority; counsel must cite court decisions that are “directly adverse” even if the lawyer believes they are factually distinguishable or for some other reason not controlling. Cyrus was sanctioned for his misconduct.

Does the Duty Require Complete References?

Witnesses swear to tell the whole truth; are lawyers obligated to cite the whole case? Isn't it enough to accurately cite the case and then just emphasize the part of the opinion that supports your argument? This question is answered by Precision Specialty Metals, Inc. v. United States, 315 F. 3d 1346 (Fed. Cir. 2003).6

In Precision, Department of Justice attorney Walser had a May 5 deadline to file opposition to a motion for summary judgment. On May 4, having not yet begun to prepare the opposition, Walser filed a motion for a 30-day extension within which to file. Two days later, the court denied the motion and ordered Walser to file the opposition “forthwith.” When Walser filed the opposition 12 days later, the court struck it from the record as untimely.

Walser, no doubt thinking that getting the opposition on file in 12 days was moving at warp speed, filed a motion for reconsideration. The issue was whether Walser had filed the opposition “forthwith.” After quoting the definition of the word from Black's Law Dictionary, Walser further supported her argument with case law. According to Walser's research: City of New York v. McAllister Brothers, Inc., 278 F. 2d 708, 710 (1960) (“forthwith” means immediately, without delay, or as soon as the object may be accomplished by reasonable exertion. Emphasis added.)

The parenthetical quote was correct as far as it went. But the court found that counsel had edited a bit too zealously. The complete language in McAllister referring to “forthwith” had another sentence about the meaning of the crucial word:

“Forthwith” means immediately, without delay, or as soon as the object may be accomplished by reasonable exertion. The Supreme Court has said of the word that “in matters of practice and pleading it is usually construed, and sometimes defined by rule of court, as within twenty-four hours.” McAllister at 710.

The court did not wait 24 hours to find Walser in violation of Rule 11. It affirmed the lower court's reprimand “forthwith.”

Reconciling zealous advocacy with ethical duties is an ongoing challenge. The most successful advocates habitually favor the ethical call because they know, in Justice Scalia's words, that “Your objective in every argument...is to show yourself worthy of trust.”7

1 A.B.A. Model Rule 3.3

2 Id. at cmt. 4.

3 Melissa H. Weresh, Legal Writing: Ethical and Professional Considerations (2006).

4 Tyler v. State, 47 P. 3d 1095 (Alaska App. 2001). See Weresh, supra note 3, at 158-171.

5 McGhee v. State, 951 P. 2d 1215 (Alaska 1998).

6 See Weresh, supra note 3, at 144-51.

7 Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).


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