Disclosure Of Adverse Authority

The Ohio Supreme Court granted a motion to disclose adverse authority filed pursuant to the Rules of Professional Conduct

Counsel for Appellee Michael Schilling asks for leave to file adverse authority pursuant to Prof.Cond.R. 3.3(a)(2), specifically, State v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-2123, 928 N.E.2d 1093, ¶ 14. Language in that decision could be considered a “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[.]”

This is not supplemental authority under S.Ct.Prac.R. 17.08(A) because it is not an authority on which Counsel “intends to rely during oral argument[.]” And while that rule has a seven-day-before-argument deadline, the Rules of Professional Conduct do not similarly limit Counsel’s duty of candor. Further, this motion is unlikely to prejudice the state because the state will receive this notice six days before argument.

Clayborn has not been cited by the parties or by the court below. Counsel is submitting it the same day that Counsel noticed its potential relevance to this case.

(Mike Frisch)