Candor toward the tribunal addresses a core value of attorneys engaged in advocacy. Honesty and integrity, especially when citing, relying, and relaying legal precedent and authority to the appellate courts.
I have come across a decision by Judge Posner which explicates this rule with succinctness in text, tone, and vision (digital image, that is).
Please note the images that follow are those from the actual decision and are not mine. And for a gentle reminder of the Kentucky rule on candor:
SCR 3.130(3.3) Candor toward the tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal published 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
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
A decision out of the Seven Circuit (No. 11-1665, Moncia Del Carm Gonzalez-Servin v. Ford Motor Co., addressed this issue in some not-so-kind words. Download GonzalezServin_v_Ford.
When there is apparently dispositive precedent, an
appellant may urge its overruling or distinguishing or
reserve a challenge to it for a petition for certiorari but
may not simply ignore it. We don’t know the thinking
that led the appellants’ counsel in these two cases to
do that. But we do know that the two sets of cases out
of which the appeals arise, involving the blood-products
and Bridgestone/Firestone tire litigations, generated many
transfers under the doctrine of forum non conveniens, three
of which we affirmed in the two ignored precedents.
There are likely to be additional such appeals; maybe
appellants think that if they ignore our precedents their
appeals will not be assigned to the same panel as decided
the cases that established the precedents. Whatever the
reason, such advocacy is unacceptable.
The ostrich is a noble animal, but not a proper
model for an appellate advocate. (Not that ostriches
really bury their heads in the sand when threatened; don’t
be fooled by the picture below.) The “ostrich-like tactic
of pretending that potentially dispositive authority
against a litigant’s contention does not exist is as unprofessional
as it is pointless.” Mannheim Video, Inc. v. County
of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill
v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).
The attorney in the vehicular accident case, David S.
“Mac” McKeand, is especially culpable, because he filed
his opening brief as well as his reply brief after the Abad
decision yet mentioned it in neither brief despite the
heavy reliance that opposing counsel placed on it in
their response brief. In contrast, counsel in the bloodproducts
appeal could not have referred to either Abad
or Chang in their opening brief, did try to distinguish
Abad (if unpersuasively) in their reply brief, and may
have thought that Chang added nothing to Abad. Their advocacy
left much to be desired, but McKeand’s left more.
AFFIRMED.
