The Duty of Candor and Issue Forfeiture: A Hard Lesson from the Court of Appeal

On By sdcountybar

The Duty of Candor and Issue Forfeiture: A Hard Lesson from the Court of Appeal

By Jeff Michalowski

Candor to the tribunal is among an attorney’s most basic responsibilities under the Rules of Professional Conduct. (See Rule 3.3(a) [“A Lawyer shall not . . . knowingly make a false statement of fact or law to a tribunal . . .”].). But it is also one of the most basic features of effective lawyering. 

The rule of candor prohibits attorneys from making false statements to any tribunal — including to any judge, administrative law judge, or arbitrator. See Rule 1.01(m).  But a recent appellate opinion demonstrates the profound risks— to both the attorney and to the client — of making written misrepresentations to the Court of Appeal.  Such misrepresentations, whether intentional or not, will almost always do far more harm than good to a client’s interests.

In Perry v. Kia Motors America, Inc. (2023) 91 Cal. App. 5th 1088 (2023) (Perry), the plaintiff and appellant had sustained a brain injury as a result of a car accident.  She claimed design defects and negligence, but lost at trial before a jury. On appeal, she claimed the trial court abused its discretion by declining to instruct the jury that Kia had concealed key evidence (i.e., certain engineering documents) in discovery. Specifically, appellant’s briefing informed the Court:

  • “On July 20, 2021, the [trial c]ourt ruled that despite finding Kia improperly concealed documents, the [c]ourt would not give a jury instruction as requested in Perry’s Motion in Limine No. 1 regarding concealment of the documents.” (Emphasis added.)
  • “Despite a finding that Kia improperly concealed documents, and that counsel for Kia should have produced the critical engineering documents during discovery, the [c]ourt ruled that no jury instruction regarding concealment by Kia and its counsel would be given.” (Emphasis added.)

In reality, the trial court never made a finding that “Kia improperly concealed documents.”  It did find that Kia had improperly withheld documents based on objections that were not meritorious. The trial court never found that Kia had concealed anything. 

Indeed, in remarks from the bench, the trial court said exactly the opposite. (See Perry, supra, 91 Cal. App. 5th at p. 1096 [“I did not feel that to be a concealment with an intent to deprive the other side of its fair trial.”].) In other words, appellant’s representations in her brief were inconsistent with the underlying record. 

Was this intentional, or an honest mistake?  The answer is not definitively clear. 

On one hand, the attorney stated that the trial court made a finding of concealment, even though the trial court expressly stated it had not. Moreover, the attorney did not disclose the trial court’s remarks to the Court of the Appeal (leaving it to the respondent to highlight that language in its brief).

On the other hand, based on ordinary definitions, the difference between withholding and concealing is not particularly stark — there is some overlap between the terms, and some may use them interchangeably. Webster’s Dictionary says that “withholding” means “to refrain from granting, giving, or allowing,” while concealing means “to prevent disclosure or recognition.” 

Reading the language of the Perry brief generously, then, one could imagine that the drafting attorney was guilty only of imprecise word choice. Replacing a single word in the brief (“concealed”) with a different word (“withheld”) would seem to solve the problem.

Crucially, however, the Court of Appeal’s analysis did not turn on the drafting attorney’s intent. Given the realities of appellate practice — in which attorneys engage directly with the Court of Appeal only at oral argument, and only for a matter of minutes — it is unlikely that the attorney had much of an opportunity to explain his choice of words. 

Instead, the Court of Appeal found that the statement’s infidelity to the record spoke for itself and was sufficient to forfeit the issue. Specifically, the Court (i) cited the Rules of Professional Conduct; (ii) found that counsel had not satisfied their duty of candor; and (iii) found that the failure to satisfy the duty of candor forfeited the issue on appeal.  (See Perry, supra, 91 Cal. App. 5th at p. 1096.)

Perry is well-reasoned and is consistent with Rule 3.3.  The Rule is not limited to intentional or fraudulent misrepresentations, and it does not turn on an attorney’s intent. Rather, it turns on an attorney’s knowledge of the facts.  (See Rule 3.3 [“A lawyer shall not knowingly make a false statement of fact or law to a tribunal . . . .”].) Especially in Courts of Appeal — where the record is a closed universe known to all parties and to the Court — misstatements of the record risk running afoul of Rule 3.3.

Perry drives home two important points — one obvious, and one less so.  First, intentionally misrepresenting the record to a Court of Appeal will never serve our clients’ interests. Second, overstating the record, even inadvertently, can be just as harmful to the client’s interests. Courts of Appeal have high expectations for drafting attorneys, and infidelity to the record, whatever the intent, is never a winning strategy.