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Concept
Adverse authority
Summary
Adverse authority or adverse controlling authority, in United States law, is some controlling authority based on a legal decision and opposed to the position of an attorney in a case before the court. The attorney is under an ethical obligation to disclose that legal decision, which is an adverse authority, to the court. This obligation is set forth in the American Bar Association Model Rules of Professional Conduct, §3.3.
The obligation to disclose adverse authority is in tension with the attorney's obligation to zealously represent the interests of the client. However, various public policy arguments have been set forth to explain why the attorney's duty of candor to the court with respect to such authority outweighs the duty to the client's cause. Ostensibly, the reason is to serve the law itself by preventing a court from making a decision that is erroneous in light of the authority revealed.
As a practical matter, an attorney who discovers adverse authority and fails to disclose it to the court may lose credibility with the court if the authority is found by opposing counsel, or by the court itself. The court may presume that an attorney who fails to disclose such authority has either been unethical in failing to disclose it, or has acted without diligence in failing to discover it. Moreover, the attorney disclosing such authority has the opportunity to frame the disclosure in a manner that seeks to diminish the impact of that authority by presenting arguments as to why it is inapplicable to the facts of the current case, or should be overturned altogether.
In order to fall within the obligation for disclosure, the matter must meet three conditions: it must be legal authority, it must be directly adverse, and it must be from a controlling jurisdiction.
Legal authority
The matter for which disclosure is compelled must be a matter of decided law, rather than a mere opinion rendered by an academic.
Official source
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