Advocacy Has Its Limits
LACBA Update, October 2006

By David L. Brandon, member, LACBA Professional Responsibility and Ethics Committee. Brandon is senior counsel at Morris Polich & Purdy LLP, where his practice focuses primarily on the defense of professionals, including attorneys. He is also an adjunct professor of appellate law at Loyola Law School. The opinions expressed are his own.

In January 2006, the Third District of the California Court of Appeal published an opinion in which it concluded that an appellate advocate’s misrepresentation of the record was so egregious that it referred its opinion to the State Bar. In doing so, the court of appeal made this rather startling pronouncement:

Recently, some appellate counsel appearing at oral argument in this court have found it convenient to misrepresent the state of the record. Whether it is to try to gain some advantage (on the assumption that the judges will take what they say at face value) or perhaps simply because they are reckless with the truth, it places an additional burden on the court. We are forced to reexamine the record to verify whether counsel’s characterization is correct. These cavalier mischaracterizations of the record must stop. Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367, 1374; emphasis added.

That the court of appeal felt the need to remind us that we have a duty to tell the truth cannot be a positive development. If there is a trend among appellate counsel to make misrepresentations before the bench, perhaps it is worth reviewing certain ethical guidelines so that we all recognize there are limits to our advocacy.

Attorneys are officers of the court, Griffis v. S.S. Kresge Company (1984) 150 Cal.App.3d 491, 499, and our unique position imposes a duty on us to temper advocacy with the truth. “Candor and frankness should be the primary concern of a lawyer....” State Bar v. Langert (1954) 43 Cal.2d 636, 642. Our duties in this regard stem from Business and Professions Code Section 6068(d), which states that “[i]t is the duty of an attorney [to] employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” We must “refrain from misleading and deceptive acts without qualification.” Rodgers v. State Bar (1989) 48 Cal.3d 300, 315.

This mandate is further amplified by current California Rule of Professional Conduct 5-200, which states:

In presenting a matter to a tribunal, a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision; [and]

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional....

This duty applies to advocacy, including arguments made before tribunals. For example, we must refrain from making false statements of fact or law to a tribunal, and we must actively correct any false statement of material fact or law previously made to a tribunal. In re S.C. (2006) 138 Cal.App.4th 396, 417 (“Counsel should never misrepresent the holding of an appellate decision”); see also ABA Annotated Model Rules of Professional Conduct, Rule 3.3(a)(1).1 The fact that the misrepresentation might not actually deceive the court or that the misrepresentation causes no harm does not excuse the behavior. Davis v. State Bar (1983) 33 Cal.3d 231, 240; Scofield v. State Bar (1965) 62 Cal.2d 624, 628. We are prohibited from making a material misrepresentation to the court with knowledge that the statement is false and with the intent to mislead. Conroy v. State Bar (1991) 53 Cal.3d 495, 501-502, 508; Vickers v. State Bar (1948) 32 Cal.2d 247, 252-253. “It is the endeavor to secure an advantage by means of falsity which is denounced.” Pickering v. State Bar (1944) 24 Cal.2d 141, 145.

What were the circumstances in Mammoth Mountain Ski Area that caused the court of appeal to refer this particular advocate to the State Bar for potential discipline? The plaintiffs were an employee and an employer who claimed that the defendant had caused personal injuries to the employee and caused the employer to incur workers’ compensation benefit expenses. The plaintiffs claimed that the defendant was a snowboarder who was engaged in a snowball fight while snowboarding, which distracted the defendant and caused him to collide with the plaintiff employee (a ski instructor). The trial court granted the snowboarder summary judgment under the primary assumption of the risk doctrine, holding that a potential collision was an inherent risk of skiing and snowboarding. The court of appeal reversed the judgment, finding a triable issue of material fact as to whether the defendant snowboarder’s conduct was “so reckless as to be totally outside the range of ordinary activity involved in the sport of snowboarding.” Mammoth Mountain Ski Area, 135 Cal.App.4th at 1369.

At oral argument, the plaintiffs’ attorney had argued there was evidence that the defendant had been engaged in the snowball fight at the time of the incident, precluding summary judgment. The defense attorney argued to the contrary, affirmatively stating that there was “no evidence” the defendant had thrown a snowball. In reality, as the court noted, there was evidence that the defendant had, in fact, thrown snowballs; in fact, the court noted that in opposition to the motion for summary judgment, the plaintiffs had submitted a declaration from a witness who testified that both the defendant and his brother had been engaged in a snowball fight and were throwing snowballs. Id. at 1375. This was a crucial piece of evidence because on summary judgment the facts have to be construed in favor of the opposing party. Id. at 1369. It was this statement by the defense advocate that so offended the court. It concluded that when defense counsel represented there was no such evidence—when in reality the issue was disputed—“he misrepresented the record on a crucial point” and referred a copy of its opinion to the State Bar for consideration. Id. at 1375.

Zealous advocacy is not a license to fabricate. Lebbos v. State Bar (1991) 53 Cal.3d 37, 45. Take care to follow this mandate. Those who do not will have a snowball’s chance of avoiding discipline.

1 The current ABA Model Rules are not binding on California attorneys. State Fund v. PWS (1999) 70 Cal. App. 4th 644, 655-56. However, it is worth noting that the California Rules of Professional Conduct are currently in the process of revisions, and it is possible that the Rules Revision Commission may adopt some of the ABA Model Rules.