In a published decision, the First District Court of Appeal suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, “clearly are pertinent to any meaningful discussion of the issue.” The court cited Rule 5-200 of the Rules of Professional Conduct, requiring that attorneys employ only those means “consistent with the truth” and that attorneys not “seek to mislead the judge … by an artifice or false statement of fact or law.”
To interpret the California Rule, the court found persuasive ABA Model Rule 3.3 which requires a lawyer to disclose relevant authority “directly adverse to the position of the client and not disclosed by opposing counsel.”
Now, in this case, the contrary authority was disclosed by opposing counsel and the court’s criticism came in response to a comment by opposing counsel criticizing the failure to address the cases on point.
Regardless of whether you agree with the court in this instance that failure to address highly relevant cases cited by your opponent is “unethical,” and whatever actually happened in this case, you must at least concede that it does not help your advocacy. Practice in the appellate forum gives the advocate perhaps the best opportunity to confront adverse authority and to argue that the cases should be distinguished or even overturned. If the cited cases are a key part of your opponents case, failure to address those decisions surrenders what may be your only chance to prevail.