In the United States, lawyers are independent and may engage in zealous advocacy in direct conflict with the announced policies and desires of the government or powerful private adversaries in both civil and criminal cases. Here, we take it as axiomatic that no system can be truly fair and effective without the courage, zeal and independence of the bar. We believe that it is largely through the dialectic born of a true adversary system that the truth is found, rights are protected and the proper balance between citizen and government is attained.

Of course, no one would quarrel with the powerful and pre-eminent duty of a lawyer to zealously represent his or her client and thus to provide one half of the dialectic. However, there is another important ethical principle which must be considered – that of candor to the tribunal. Although instances of outright dishonesty are rare, courts are not altogether unfamiliar with less than candid expositions of the supposed law governing a subject at issue. Because the dialectic, to have any validity, depends not only upon zeal, but upon basic intellectual honesty as well, those few instances are of sufficient gravity to warrant this commentary.

A case in point is one which was recently before this court. The case involved a claim for damages arising out of a residential fire started by plaintiffs' pre-school child using a butane utility lighter manufactured by defendants. The plaintiffs made claims under theories of negligence, recklessness, strict liability, and fraud. A motion to dismiss was made pursuant to Rule 12(b)(6) for failure to state a claim on which relief could be granted, against all of plaintiffs' claims. In their brief in opposition, plaintiffs said nothing about any of their claims except negligence, thus implicitly abandoning all other claims.

Defendants' counsel argued that a negligence claim cannot exist in this case where there is no defect in the product, and where the obviousness of the danger negates the existence of any duty. In making these arguments, defendants failed to cite Griggs v. BIC Corp., 981 F.2d 1429 (3d Cir. 1992), in their discussion. Griggs is a case in which the Court of Appeals for the Third Circuit (a court to which our court is subordinate in the judicial hierarchy), reversing a district court summary judgment, found that a cause of action in negligence may lie as against sellers of non-childproof lighters. 981 F.2d at 1439. Plaintiffs relied heavily on Griggs in their opposition.

In making their arguments, however, defendants' counsel did cite Griggs for the other major issue it resolved: that no action would lie against manufacturers of non-childproof lighters under strict liability, because strict liability analysis involves unreasonable danger to intended users, and children are not the intended users of disposable lighters. 981 F.2d at 1434. In sum, defendants cited Griggs for the holding favorable to them, but did not cite Griggs for the holding unfavorable to them.

Pennsylvania Rule of Professional Conduct 3.3, Candor Toward the Tribunal, (governing lawyers practicing in this jurisdiction) states:

(a) A lawyer shall not knowingly:
. . .
(3) 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; . . .

Rule 3.3 seems to fit these circumstances squarely. Having cited it for a separate holding, defense counsel were obviously familiar with Griggs, so it would be fair to charge them with knowledge. There was no disclosure of Griggs' holding on the negligence issue in the portion of their brief where they addressed plaintiffs' negligence claim. And, the negligence holding of Griggs is directly adverse to defendants' position. As for disclosure of Griggs to the court by opposing counsel, we would not put much weight on this factor when the moving party actually cites to the opinion, but only part of it. Had plaintiffs missed Griggs, we think it unlikely defendants' counsel would have then come forward, cited Griggs, and urged the court to deny defendants' own motion to dismiss.

While failing to cite Griggs, defendants' relied on a particular Pennsylvania Superior Court case in support of their negligence argument, Dambacher v. Mallis, 485 A.2d 408 (Pa. Super. 1984), appeal dismissed, 500 A.2d 428 (1985). They also cited and attached opinions from judges in Pennsylvania courts of common pleas favoring their position. But Griggs addressed Dambacher, found it flawed, and made its own predictions about how the Pennsylvania Supreme Court would address the issue if presented. 981 F.2d at 1439. Inasmuch as the Circuit Court’s prediction as to how the Supreme Court of Pennsylvania would rule on an issue governs, defense counsels' motivation for this treatment of controlling authority directly on point is unclear.

We surmise, however, the Defendant wished to move the law in the direction indicated by the Pennsylvania Superior Court and some of its trial tribunals, a perfectly appropriate strategy. Two points are equally obvious, however. The first is that in diversity cases, it is the Pennsylvania law as predicted by the court of appeals for the circuit which the district court is obliged to follow. While state trial courts are free to disregard the controlling effect of federal circuit court opinions, federal district courts are not. The second is that a genuine attempt to change the law is furthered only by forthrightly addressing the current law, acknowledging its controlling force, and persuasively setting out the reasons for the change. At minimum, this would require an explanation of how defendants proposed to counteract the controlling effect of current law. Even though the lower federal court would be powerless to effect the suggested change in the law, at least its proponent will have properly set the stage for an appellate review.

The failure to acknowledge clear, known law is a problem. It leads to the unsettling suggestion that litigation objectives are whatever one can slip past the court. It undermines the tribunal's confidence in the traditional dialectic as the principal means of informing itself. Briefing the law for a court is not a cat-and-mouse game. "A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. . . . The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case." Comment to Rule of Professional Conduct 3.3 (emphasis added).

This observation is particularly relevant to the case under discussion because, in addition to the ethical duties imposed by Rule of Professional Conduct 3.3, a recognition of controlling law would have streamlined the process. Plaintiffs brought five claims, but apparently were only convinced of the legal merit of one. Defendants sought to dismiss all plaintiffs' claims, but ultimately must have known that their negligence claim would survive a Rule 12(b)(6) examination. Thus, if plaintiffs had pleaded their one meritorious claim from the outset (recognizing their ability to amend under Rule 15 if discovery or research revealed grounds for other claims), and defendants had recognized controlling authority that does not permit Rule 12(b)(6) dismissal of a negligence claim in a case like this, then a Rule 12(b)(6) motion could have been avoided. All participants would have then been spared the expense of making and opposing the motion, as well as the delay occasioned by the court wading through hundreds of other pending motions to get to this one.

These interests must be considered if we members of the legal system expect the public to have confidence that it works.

Judge Robert J. Cindrich
October 23, 2000