by Keith W. Rizzardi
The duty of candor to the tribunal, a core value of the Rules Regulating The Florida Bar, requires lawyers to disclose to the tribunal adverse precedent from a “controlling jurisdiction.”1 Many Florida lawyers, however, might be surprised to learn that when it comes to the opinions of Florida’s district courts of appeal, a court’s physical jurisdictional boundaries may be irrelevant to an opinion’s precedential weight. In Florida, until a conflict arises among the district courts (or until the Supreme Court rules) on any matter of first impression, the opinion of any one district court is binding and controlling precedent, statewide, on all other lower-level state tribunals.
Ethics, Professionalism, and the Duty to Disclose Adverse Precedent
For a lawyer, the discovery of adverse caselaw from other jurisdictions presents a professional challenge. As one judge and scholar recently noted, even when there may be reasons to distinguish the case, there remain practical reasons to disclose the adverse authority:
Principles of professionalism would suggest the propriety of disclosing decisions of other coordinate courts that are on point, as well. . . . [The court] is almost certain to find those decisions anyway, and failure to disclose and address them might well cause the court to conclude that the attorney cannot be trusted.2
Furthermore, the aspiration of professionalism may, in fact, equate with ethical duties when it comes to disclosing a district court opinion in one of Florida’s circuit or county court proceedings.
In Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992), the Florida Supreme Court explained the hierarchy of authority within the Florida court system as follows:
The [d]istrict [c]ourts of [a]ppeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts — [d]istrict [c]ourts of [a]ppeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between [d]istrict [c]ourts of [a]ppeal, a sister district’s opinion is merely persuasive.3
In other words, pursuant to this principle (the Pardo principle) a trial court must follow any decision of first impression by any one of Florida’s five district courts of appeal.4 The Florida Supreme Court reaffirmed this reasoning in Brannon v. State, 850 So. 2d 452, 458 n.4 (Fla. 2003), stating: “If there is no controlling decision by this Court or the district court having jurisdiction over the trial court on a point of law, a decision by another district court is binding.”5
From an ethical standpoint, this could mean that, in some circumstances, a lawyer appearing before the trial courts of Florida must cite cases from other district courts, because Rule 4-3.3(a)(3) of the Rules Regulating The Florida Bar states as follows: “(a) False Evidence; Duty to Disclose. 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 . . . .” In other words, given the Pardo principle and its holding that Florida’s trial courts are bound to follow “the only case on point on a district level,” the rulings of district courts other than the one in which the trial court is located are controlling. Thus, depending upon how one interprets the next term “jurisdiction” in the ethical mandate to “disclose to the tribunal legal authority in the controlling jurisdiction,” Florida’s duty to disclose adverse authority on appeal may apply to authority from the Florida Supreme Court, authority from the district court to which the lawyer would appeal, and even authority from other district courts (if the only case on point is from a district other than the one in which the trial court is located).
Although no case has specifically held that a Florida lawyer has a duty to cite caselaw from other district courts, cases discussing Rule 4-3.3(a)(3) have interpreted the rule in a way that favors disclosure. Most notably, in Boca Burger, Inc. v. Forum, 912 So. 2d 561, 572 (Fla. 2005), the Supreme Court emphasized that “the rules already require counsel to concede error on appeal when appropriate,” and the opinion included two substantial footnotes listing dozens of cases where the State of Florida conceded error or where an appellee conceded error to a district court. Reiterating the need for attorney candor, the Florida Supreme Court in Boca Burger also quoted the past lamentations of another judge:
Too many members of the Bar practice with complete ignorance of or disdain for the basic principle that a lawyer’s duty to his calling and to the administration of justice far outweighs—and must outweigh—even his obligation to his client, and, surely what we suspect really motivates many such inappropriate actions, his interest in his personal aggrandizement.6
In other words, lawyers should be wary of choosing not to disclose a district court opinion. Any effort to assert a narrow interpretation of Rule 4-3.3 and its term “controlling jurisdiction” is ill-advised. Instead, based upon the Pardo principle, Florida lawyers should disclose the rulings of any district court on any matter of first impression.
Other Practical Consequences of Statewide Adherence to an Appellate Opinion
From a policy perspective, the limited and discretionary jurisdiction of the Florida Supreme Court provides the basis for the Pardo principle, requiring trial courts to follow the decision of any district court when that opinion is the only decision on point. Pursuant to Fla. Const. art. V, §3(b), the Florida Supreme Court has five categories of jurisdiction: mandatory appellate jurisdiction, discretionary review jurisdiction, discretionary original jurisdiction, exclusive jurisdiction, and jurisdiction to issue certain advisory opinions.7 Discretionary review is not available for many cases,8 so, absent Florida Supreme Court review, it seems logical for a trial court to rely upon review already provided by one of Florida’s other appellate courts. Nevertheless, the concept of making a district court opinion binding, statewide, regardless of physical jurisdictional boundaries, has at least three significant consequences.
• Florida Allows Less Development of Legal Theories than the Federal Model — First, putting aside professionalism concerns for a moment, the Pardo principle contradicts the federally focused training that lawyers receive in law school. A U.S. circuit court of appeals decision is merely persuasive for the U.S. district courts from other circuit court jurisdictions, because the federal system intends for legal thought to be developed in multiple courts and jurisdictions:
[T]here are also very important differences between controlling and persuasive authority. As noted, one of these is that, if a controlling precedent is determined to be on point, it must be followed. Another important distinction concerns the scope of controlling authority. Thus, an opinion of our court is binding within our circuit, not elsewhere in the country. The courts of appeals, and even the lower courts of other circuits, may decline to follow the rule we announce — and often do. This ability to develop different interpretations of the law among the circuits is considered a strength of our system. It allows experimentation with different approaches to the same legal problem, so that when the Supreme Court eventually reviews the issue it has the benefit of “percolation” within the lower courts.9
By using a different model and giving greater, statewide precedential weight to some appellate decisions from the district courts, Florida loses the opportunity to “percolate” different interpretations of the law. Instead, lawyers must comply with their duty of candor and the Rules Regulating The Florida Bar, disclose the controlling adverse precedent, immediately lose the trial court proceeding, and then take the issue up on appeal. Florida’s approach, however, also offers greater judicial efficiency, with fewer trial courts wrestling with legal issues. If disagreements on legal principles exist, they will emerge only between sister district courts.
• Intervention Becomes More Important, But May Prove Difficult — Second, the Pardo principle of treating district court precedent as binding, statewide, means that to best protect their clients with niche concerns (such as clients’ concerns with specific statutes, rules, or procedures) litigators should seek to intervene into any case raising matters of first impression related to those concerns, regardless of jurisdictional boundaries. However, because the litigants will be seeking to intervene in a case outside their own physical jurisdiction, it may prove difficult to meet the standards for intervention as of right, so many efforts to intervene in the trial court,10 or even to file an amicus brief in the appellate court,11 will depend upon judicial discretion.
• Per Curiam Affirmed Opinions Expose Problems, Impede Solutions — Third, and finally, the Pardo principle reminds litigators and jurists, once again, of the importance of careful use of per curiam affirmed opinions. In theory, as one district court has observed, PCAs are only appropriate when the facts and law are so well established that discussion of them would serve no useful purpose.12 PCAs increase judicial efficiency,13 but do not carry precedential weight.14 The appropriate use of PCAs has been debated for decades.15 Several commentators have questioned the use of PCAs in cases involving matters of first impression.16 Given the Pardo principle, the victorious lawyer should be especially motivated to ask the district court of appeal to write an opinion, and, thus, to create binding statewide precedent, even when the court initially chose not to elaborate its reasoning.17
But the Pardo principle can prove especially frustrating when one district court of appeal issues an opinion, but another DCA issues a per curiam affirmed opinion. For example, what happens if a matter of first impression is decided in a written opinion by one district court, but the opinion seems inconsistent with a PCA opinion in a different district court?18 Or what if the Second District Court to rule upon an issue agrees with the First District Court in a per curiam opinion, but the opinion includes a vigorous dissenting opinion?19 In both of these instances, the merit of the original district court’s decision on the matter of first impression would appear to be diminished. Nevertheless, since PCAs, and even those PCAs with dissenting or concurring opinions, carry no precedential weight and are not reviewable by the Florida Supreme Court,20 pursuant to Pardo and its progeny, the original district court’s opinion on any matter of first impression remains controlling.
For purposes of some appellate decisions by Florida’s district courts of appeal, the meaning of “controlling jurisdiction” differs dramatically from the federal courts. Pursuant to Pardo, the opinion of any one appellate court in any matter of first impression serves as binding precedent for all lower-level trial courts, statewide. This principle has important implications for a Florida lawyer’s duty of candor to the tribunal. If the only case on point on a district level is from a district other than the one in which the trial court is located, then lawyers must disclose that adverse legal authority, pursuant to Rule 4-3.3 of the Rules Regulating The Florida Bar. The Pardo principle may also increase the incentives for lawyers to intervene or write amicus briefs in other cases outside the physical jurisdictions of their own DCA. In light of the increased weight given to appellate decisions on matters of first impression, Florida’s appellate judges should be especially attentive to their use of per curiam affirmed opinions (and respectful dissents) in this context.
1 R. Regulating Fla. Bar 4-3.3.
2 Judge Peter D. Webster, Ethics and Professionalism on Appeal, 85 Fla. Bar J. 16 (Jan. 2011) (discussing Rule 4-3.3(a)(3) and citing Williams v. State, 45 So. 3d 14 (Fla. 1st D.C.A. 2010) (Webster, J., concurring in result only)).
3 Emphasis added; quoting State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th D.C.A. 1976) (footnote and citations omitted).
4 Applying the Pardo principle, Florida’s Fourth District Court of Appeal explained that trial courts lack discretion to ignore the decisions of other district courts of appeal decisions: “Pardo applies in this case because the decision of the second district in Tampa Letter Carriers [v. Mack, 649 So. 2d 890 (Fla. 2d D.C.A. 1995)] clearly addresses the identical issue confronted by the trial court in this case. A trial judge in Florida is not free to refuse to follow applicable precedent from another district merely because the trial judge disagrees with the holding of that district court. From that standpoint alone, the decision below is in error and must be reversed.” Special’s Trading Co. v. Int’l Consumer Corp., 679 So. 2d 369, 370 (Fla. 4th D.C.A. 1996), reversed on other grounds, MX Invs. v. Crawford, 700 So. 2d 640 (Fla. 1997); see also Aurora Loan Servs. LLC v. Senchuk, 36 So. 3d 716, 721 (Fla. 1st D.C.A. 2010) (“[I]n the absence of inter-district conflict or contrary precedent for the [S]upreme [C]ourt, the decision of a district court of appeal is binding throughout Florida.”).
5 See also Susan W. Fox and Wendy S. Loquasto, The Art of Persuasion Through Legal Citations, 84 Fla. B. J. 49 (April 2010).
6 Boca Burger, Inc. v. Forum, 912 So. 2d 561, 572 (Fla. 2005) (quoting Rapid Credit Corp. v. Sunset Park Centre, Ltd., 566 So. 2d 810, 812 n.2 (Fla. 3d D.C.A. 1990) (Schwartz, C.J., specially concurring)); see also Friedman v. Friedman, 825 So. 2d 1010, 1011 (Fla. 4th D.C.A. 2002) (“We remind counsel for appellant of her ethical duty, under [R]ule 4-3.3(a)(3), to disclose ‘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.’”); Dilallo By and Through Dilallo v. Riding Safely, Inc., 687 So. 2d 353, 355 (Fla. 4th D.C.A. 1997) (“Rule 4-1.1 and Rule 4-3.3(3) imply a duty to know and disclose to the court adverse legal authority. We construe these rules to also require an attorney to provide full information to the trial court such that the court has all necessary information to determine the issue presented to it.”); Walker v. State, 579 So. 2d 348, 349 (Fla. 1st D.C.A. 1991) (“We appreciate counsel’s candor. Far too often counsel in their enthusiasm to zealously represent their client’s interest forget their other obligation of candor toward the tribunal.”).
7 See Gerald Kogan and Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L. Rev. 1151 (1994).
8 See also Diana L. Martin and Robin I. Bresky, Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, 83 Fla. B. J. 55 (Nov. 2009).
9 Hart v. Massanari, 266 F.3d 1155, 1172-1173 (9th Cir. 2001).
10 See Fla. R. Civ. P. 1.230 (“Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.”).
11 See Fla. R. App. P. 9.370(a) (“An amicus curiae may file a brief only by leave of court. A motion for leave to file must state the movant’s interest, the particular issue to be addressed, how the movant can assist the court in the disposition of the case, and whether all parties consent to the filing of the brief.”).
12 Williams v. State, 425 So. 2d 1163 (Fla. 5th D.C.A. 1983).
13 Judicial Management Council, Final Report and Recommendations, Committee on Per Curiam Affirmed Decisions (May 2000), http://www.flcourts.org/gen_public/pubs/bin/pca-report.pdf (“Among the reasons given in support of the use of the PCA is that it enhances judicial efficiency, reduces non-precedential clutter in reported opinions, saves judicial time and resources, reduces delay in case disposition, disposes more promptly of frivolous appeals, increases the time available for cases in which opinions are needed, and reduces the attempts at frivolous review in the Supreme Court.”).
14 Radiation Technology, Inc. v. Ware Constr. Co., 445 So. 2d 329, 332 (Fla. 1983) (“[a] per curiam affirmance without opinion has no precedential value”) (citing Department of Legal Affairs v. District Court of Appeal, 434 So. 2d 310 (Fla. 5th D.C.A. 1983)).
15 See, e.g., Harry Lee Anstead, Selective Publication: An Alternative to the PCA, 34 U. Fla. L. Rev. 189 (1981-1982); Stephen Krosschell, D.C.A.s, PCAs, and Government in the Darkness, 1 Fl. Coastal L. J. 13 (Spring/Summer 1999).
16 Judicial Management Council, Final Report and Recommendations, Committee on Per Curiam Affirmed Decisions 47, 53 (May 2000) (Minority Report Comments by Nancy Daniels noting Florida Association of Criminal Defense Lawyer complaints about experiencing PCAs in cases of first impression; Minority Report Comments by Raymond T. Elligett, Jr., asserting that after 20 years of appellate experience, “I can readily think of four PCA cases that I felt clearly warranted an opinion (and no, they were not all cases I lost). There was no controlling precedent and they presented substantial substantive issues that had been preserved.”).
17 See, e.g., Arthur J. England, Jr., PCAs in the D.C.A.s: Asking for Written Opinion From a Court That Has Chosen Not to Write One, 78 Fla. B. J. 10 (March 2004).
18 See, e.g., Dixon v. State, 730 So. 2d 265, 268 n.4 (Fla. 1999) (explaining that two convicts appealed the denial of their respective motions for conviction relief based on the same argument but the third district affirmed without opinion while the second district reversed).
19 As some scholars have emphasized, an unexplained PCA rejecting an argument “appears arbitrary when another court or panel accepts the identical argument and writes a reasoned opinion to support it.” Ezequiel Lugo, The Conflict PCA: When an Affirmance Without Opinion Conflicts with a Written Opinion, 85 Fla. B. J. 46 (April 2011) (citing Stephen Krosschell, D.C.A.s, PCAs, and Government in the Darkness, 1 Fla. Coastal L. J. 13, 31 (1999)).
20 Steven Brannock and Sarah Weinzierl, Confronting a PCA: Finding a Path Around a Brick Wall, 32 Stetson L. Rev. 367, 372 (2003).
Keith W. Rizzardi teaches professional responsibility at St. Thomas University and earned board certification from The Florida Bar in state and federal administrative practice. He is chair of the U.S. Marine Fisheries Commission, special counsel to Jones Foster Johnston & Stubbs, P.A., and a past chair of The Florida Bar Government Lawyer Section. He thanks John Makdisi and June Mary Makdisi (his fellow law professors at St. Thomas University) for their encouragement, and Rachel Walker, his research assistant, for her editorial review.
This column is submitted on behalf of the Appellate Practice Section, Matthew J. Conigliaro, chair; Kristin A. Norse, editor, and Chris McAdams, Brandon Christian, and Bretton C. Albrecht, assistant editors.