Grace M. Giesel's blog
Professor Ariana Levinson has recently posted an excellent discussion on her blog about the benefits of disclosing adverse authority. Professor Levinson discusses the increased value of persuasion the argument has when it distinguishes adverse authority. I write to add that in the majority of jurisdictions, there is an ethical duty to disclose directly adverse authority from the controlling jurisdiction. Model Rule 3.3(a)(2), adopted by many jurisdictions, states: "(a) A lawyer shall not knowingly: ... (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." The thought is that the failure to disclose creates damage not just to the client, but to the judicial system. Either judicial resources are expended in doing research or, the court does not discover the adverse authority and renders a reversable opinion which confuses the law of the jurisdiction.
Kentucky, at the moment, does not require disclosure of adverse authority. The Board of Governors has recommended to the Kentucky Supreme Court that Kentucky go the way of the majority of jurisdictions and require disclosure.
The Kentucky Supreme Court recently provided very useful guidance on a very uncomfortable problem of criminal representation. A real representational conundrum occurs when a lawyer believes that a client plans to take the stand and perjure himself or herself.
In Brown v. Commonwealth of Kentucky, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has attempted to shed some light on proper conduct, especially in the criminal context.
The Court acknowledged the lawyer's ethical obligation under Rule 3.3 by stating that the attorney must bring the conflict to the trial court's attention. To do so the lawyer must make "[a] clear statement of the nature of the problem" but need not give a "detailed evidentiary statement of the disagreement."
The lawyer should proceed in this way only if she "in good faith" has "a firm basis in objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. "
The Court directed the attorney to follow the instruction of the trial court. The Court noted that allowing the defendant to testify in narrative form is acceptable, with the lawyer present to provide representation such as objections to cross-examination and with regard to matters not involving the perjury.The Court found that in the matter before it the criminal defendant was deprived of the right to counsel because the defendant's lawyer left the courtroom during the defendant's testimony and thus could not make objections with regard to the cross-examination.