By Katie Parker
During a Zoom hearing last week in federal court in the Northern District of California, the judge blasted statements by one team of attorneys as “certainly at risk of being misleading” and described the tactics used as “pretty low-grade lawyering.” Bonnie Eslinger, ‘Low-Grade Lawyering’: Quinn Emanual Attys Draw Judge’s Ire, Law360.com (July 27, 2024, 12:01 AM), https://www.law360.com/articles/1862818. The court directed further inquiry into the falsity of the attorneys’ statements in order to determine whether to impose sanctions. At issue is what information an expert witness had received and when he had received it for purposes of determining whether a supplemental expert report was appropriate. Regardless of whether sanctions are ultimately imposed in that case, public rebukes like these are a stark reminder of our “duty of candor to the tribunal” and a good opportunity to brush up on some of the rule’s nuances.
Rule 3.3 is the primary source of a California lawyer’s duty of candor, and it provides that a lawyer shall not:
(1) knowingly 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 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 knowingly misquote to a tribunal the language of a book, statute, decision or other authority;
or
(3) offer evidence that the lawyer knows to be false.
The duty of candor is broad; it “is not simply an obligation to answer honestly when asked a direct question by the trial court. It includes an affirmative duty to inform the court when a material statement of fact or law has become false or misleading in light of subsequent events.” Levine v. Berschneider, 56 Cal. App. 5th 916, 921 (2020).
California courts apply this broad duty to a wide spectrum of representations and omissions at all stages of litigation and other proceedings. Examples of scenarios that have triggered a “duty of candor” analysis include:
- At the outset of litigation, filing two identical complaints in the same court, if done for strategic reasons. Cooper v. Pizza Plus Props., Inc., 2023 U.S. Dist. LEXIS 224264, *3 (C.D. Cal. Dec. 11, 2023).
- As discussed above, in discovery, misstating what information an expert witness had received, and when. See Eslinger, supra.
- During a discovery dispute, misstating the holding of a cited case. Kalter v. Keyfactor, Inc., 2022 U.S. Dist. LEXIS 202798, *8 (Nov. 7, 2022).
- In post-settlement proceedings, failing to inform the court that settlement funds had cleared, even though the Court did not directly ask whether they had. Levine, 56 Cal. App. 5th at 921.
- On appeal, misstating the trial court’s findings below. Perry v. Kia Motors America, Inc., 91 Cal. App. 5th 1088, 1091 (2023).
- On appeal, failing to cite controlling authority that demonstrated the court’s lack of jurisdiction over that appeal. People v. Williams, 75 Cal. App. 5th 584, 591-94 (2022).
- In the Supreme Court, lying about whether the attorney was aware of the oral argument schedule. In re Aguilar, 34 Cal. 4th 386 (2004).
The duty of candor goes hand in hand with the duty of competence — failure to understand the law or the record could contribute to material misstatements to the Court. Some of the examples above ended in sanctions, and some did not, but all provide guidance as to how we can uphold our ongoing duty of candor to the Court.