Disclosure of Adverse Authority--A Comment on Professor Levinson's Post
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.