Most lawyers know that they have a duty of candor to a tribunal, and this means they cannot misrepresent the law or the facts to the court.  However, it also means disclosing when the law is directly adverse to your client’s position.

Texas Disciplinary Rule of Professional Conduct 3.03(a)(4) states that a lawyer “shall not fail to disclose to the tribunal 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.”  A lawyer cannot lay behind the log of “well, it’s a case for the other side, and they didn’t bring it up.” Instead, the lawyer must bring it up. Bringing it up not only fulfills the duty of candor, but it also gives the lawyer the opportunity to confront it and distinguish it. Comment 3 to Rule 3.03 explains the purpose of this…