Published in Forum 8, Eighth Judicial Circuit Bar Association, Inc. Newsletter, Vol. 72, No. 7, March of 2013    

     Last time we talked about the ramifications, ethically and financially, of filing a frivolous appeal.  Relatedly, there is also an ethical duty to disclose directly adverse facts and legal authority, at the trial and appellate level, which can be found at Rule 4-3.3(a)(2) & (3) of the Rules Regulating The Florida Bar.  As to disclosing adverse legal authority, the Rule uses the language “in the controlling jurisdiction.”  However, a court’s physical jurisdictional boundaries may be irrelevant.  In Florida, if there is no controlling decision by the court or the district court of appeal having jurisdiction over the trial court on a point of law, a decision by another district court is binding.[1] 

     While the ethical duty to disclose is applicable in both trial and appellate courts, this article focus on the duty at the appellate level where the appellate courts have not hesitated to sanction counsel for failing to disclose adverse facts and/or legal authority in their appellate briefs.  For instance, in Hays v. Johnson, 566 So. 2d 260 (Fla. 5th DCA 1990), the natural mother of a minor child filed a petition for writ of habeas corpus seeking release of her child to her custody after the lower court entered an order granting temporary custody to a guardian.  The mother alleged that the child was being held in shelter care beyond the permissible time.[2] 

     After reviewing the responses filed by the guardian and the guardian ad litem program, the appellate court found that the mother’s petition was wholly without merit and, further, issued a rule to show cause, pursuant to Rule 9.410 of the Florida Rules of Appellate Procedure, why sanctions should not be imposed against the mother’s counsel for omitting material facts in the petition.[3]  Specifically, mother’s counsel failed to disclose several material facts:  (1) that the mother consented to the appointment of the guardian and the granting to him of full discretion to place the child as he saw fit; (2) that the temporary custody order was entered as a result of the mother’s incarceration for contempt for violating a visitation order and failing to reveal the whereabouts of the child; (3) that he, as the mother’s counsel, had sought numerous continuances of the proceedings; and (4) that the mother had waived all applicable time limits in the juvenile rules.[4]  Clearly, these various facts were material to the mother’s petition for immediate release of the child from his custodial arrangement. 

     While the mother’s counsel was given the opportunity to explain why he omitted material facts, he chose to re-argue the case and, due to that failure, the court admonished the attorney and directed that he personally pay the attorneys’ fees incurred by the respondents in preparing responses to his client’s petition.[5]  The appellate court made it clear that it would not tolerate the actions of any attorney who misleads the court in material matters.[6]

     In Long v. AvMed, Inc., 14 So. 3d 1264 (Fla. 1st DCA 2009), the First District Court of Appeal relied upon Hays when it ordered that the appellant and her attorney be equally responsible for the appellee’s attorneys’ fees under Section 57.105, Florida Statutes, for failing to disclose material facts and filing a frivolous appeal.  The court reminded the attorney that refusing to acknowledge unfavorable facts is not an option the attorney or their client possess. “The conduct is sanctionable as it violates an appellate counsel's ethical obligation to present the facts accurately and forthrightly.”[7] 

Although we have an adversary system of justice, it is one founded on the rule of law. Simply because our system is adversarial does not make it unconcerned with outcomes. Might does not make right, at least in the courtroom. We do not accept the notion that outcomes should depend on who is the most powerful, most eloquent, best dressed, most devious and most persistent with the last word-or, for that matter, who is able to misdirect a judge. American civil justice is so designed that established rules of law will be applied and enforced to insure that justice be rightly done. Such a system is surely defective, however, if it is acceptable for lawyers to “suggest” a trial judge into applying a “rule” or a “discretion” that they know-or should know-is contrary to existing law. Even if it hurts the strategy and tactics of a party's counsel, even if it prepares the way for an adverse ruling, even though the adversary has himself failed to cite the correct law, the lawyer is required to disclose law favoring his adversary when the court is obviously under an erroneous impression as to the law's requirements.

Boca Burger, Inc. v. Forum, 912 So. 2d 561, 573 (Fla. 2005), citing, Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001).

     The appellate courts clearly agree:  in order for the judicial process to function fairly and impartially, lawyers have an affirmative duty to help the court arrive at an informed decision by disclosing adverse facts and legal authority.  Certainly once the disclosure is made, the lawyer can challenge or distinguish the adverse facts or legal authority.  In fact, making such challenges presents a great opportunity for the lawyer to really elevate their skills to a level that will engage the participants in a conversation that will test the reasonableness of the existing law.  Regardless, following ethical rules helps avoid discipline and helps the appellate court trust the arguments raised by counsel, enhancing the possibility of success on appeal.    

[1] Aurora Loan Services LLC v. Senchuk, 36 So. 3d 716, 721 (Fla. 1st DCA 2010), citing, Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992).

[2] Id.

[3] Id. at 261. 

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 1266, citing Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005).