APPEAL TO WEEK SEVEN QUIZ QUESTION FIVE

I. Overview

The question detailed a situation in which Hans Solo is appearing before a Fulton County superior judge to request an ex parte order. The correct answer given in class was “D. All of the above,” which collectively states that:

A. Solo must tell the judge about any Georgia Supreme Court case decision that is directly adverse to the position he is arguing;

B. To his surprise, his client offers material testimony Solo knows is false. Solo cannot obtain the ex parte order without first having that testimony corrected either by himself or his client; and

C. His client fails to tell the judge that there is a pending petition by respondent to claim paternity of the child. Solo must inform the tribunal of that petition.

This appeal disputes A and B’s correctness, and argues that C is the only correct response in the posed scenario.

II. Analysis

A. There is No Indication that Solo has Knowledge of Any Adverse Legal Authority

Rule 3.3(a)(3) of the Georgia Rules of Professional Conduct states that “[a] lawyer shall not knowingly 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 . . . .(emphasis added).” Stated differently, a lawyer must inform the court of any adverse legal authority in the controlling jurisdiction of which he has knowledge. He is not required, however, to inform the tribunal of cases that he does not know exist. Thus, to knowingly fail to disclose a legal authority and thereby violate Rule 3.3(a)(3), a lawyer must first have knowledge that there is adverse legal authority.

In the scenario given in Answer A, it is a misstatement that “Solo must tell the judge about any Georgia Supreme Court case decision that is directly adverse to the position he is arguing (emphasis added).” Rather, Solo must tell the judge about any Georgia Supreme Court case decision of which he has knowledge that is directly adverse to the position he is arguing. It would be impossible for him to knowingly fail to disclose a legal authority if he does not first have knowledge that the precedent exists. Therefore, Answer A is incorrect because Solo must only inform the judge about adverse Georgia Supreme Court case decisions of which he has knowledge, NOT of any adverse Georgia Supreme Court cases.

B. Solo May Obtain the Ex Parte Order Without Taking Remedial Measures

Answer B provides a scenario in which Solo’s client offers testimony that Solo knows is false. It goes on to say that “Solo cannot obtain the ex parte order without first having that testimony corrected either by himself or his client.” This is incorrect. While it would be ethical to abide by the GRPC and correct the false testimony, Solo does have the option to unethically move forward. Comment [11] of Rule 3.3, which discusses remedial measures, states that “the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement.” The comment also says that the lawyer can keep silent about the false testimony and “the client could in effect coerce the lawyer into being a party to fraud on the court.”

Therefore, while the right and ethical thing to is to correct the false testimony, Solo can still obtain the ex parte order by “subverting the truth-finding process” or by “being a party to fraud on the court.” This option is looked down upon and could lead to Solo’s disbarment, but if he is willing to take the risk, he may still obtain the ex parte order.

C. Solo Must Inform the Court of the Petition by Respondent to Claim Paternity of the Child

Answer C, which is in our minds the correct answer, requires Solo to inform the tribunal of a pending petition by respondent to claim paternity of the child. Rule 3.3(d) requires a lawyer in an ex parte proceeding to inform the court “of all material facts known to the lawyer that the lawyer reasonably believes are necessary to enable the tribunal to make an informed decision, whether or not the facts are adverse.” Because the opposing party is not present at an ex parte hearing, it is necessary for the present attorney to provide the judge with all information that he reasonably believe is necessary for justice to be served. In this case, paternity of a child in a domestic violence case is a material fact about which the judge should know to make the most informed decision, so Solo must provide the judge with the information.

III. Conclusion

Because Answers A and B are disputably incorrect, Answer D is also incorrect. Answer C is the only correct response to the scenario presented in question five of the quiz.

APPEAL GRANTED

Your appeal is GRANTED and a response of “C” as well as “D” by any member of your firm will be counted as correct.

You make a persuasive argument that Answer A is overbroad because not explicitly limited to authority “known to the lawyer”

You misread Comment [11] to GRPC 3.3 in making your argument that Answer B is incorrect. But I can see why you have read the Comment as you do, and you have therefore prompted me to address and clarify Comment [11] when we further discuss GRPC 3.3 in class.

I agree, of course, that Answer C is correct.