Our recent post about the reviewability of remand orders prompted a spirited off-line discussion that has morphed into today’s issue.

We don’t have an answer for you today; we’re just launching a question into the blogosphere, and we’ll see what comes back.

Here’s our question.

Scenario one:

I know that a document is multiple hearsay. I have no good faith argument as to why the document is admissible into evidence. I nonetheless offer it into evidence at trial.

Opposing counsel is asleep at the switch and doesn’t object. The document is therefore admitted into evidence.

No problem, right? My conduct is not unethical and may in fact be required by the duties counsel owes to a client.

Scenario two:

I blow the 30-day deadline in which to remove a lawsuit to federal court. I have no good faith argument as to why the case is removable.

But I figure: “Heck, I’ll remove it anyway. Opposing counsel may be asleep at the switch and not file a motion to remand within 30 days. If plaintiff doesn’t timely move to remand, the objection to removal is waived, and my case can be tried to judgment in federal court.”

Is that ethical?

We’ve heard a lot of different reactions to that.

No one seems to think that counsel sins by offering inadmissible evidence at trial, hoping that opposing counsel won’t object.

But people have very different reactions to removing a non-removable case, hoping that opposing counsel won’t object.

Some folks have said that both types of conduct are ethical.

Some have told us that the proffer of evidence is oral, but the notice of removal is written. Rule 11 attaches only to writings and so doesn’t apply to the offer of evidence.

So we changed the hypo, asking now whether the conduct is “ethical,” rather than whether the conduct “violates Rule 11.”

And some folks have said that they can’t quite put a finger on it, but removing a non-removable case (and hoping for a waiver) is somehow more offensive than offering an inadmissible document into evidence (and hoping for a waiver).

The academic blogosphere was happy to respond when we posted about Twombly and Iqbal (here, here, and here, among other places). We’ll be curious to see if that same gang (or someone else) can help us with our ethics hypo.

Have at it.

  • Anonymous

    The admissibility of evidence lies within the sound discretion of the trial court and the rules of evidence call for exercise of that discretion. Accordingly, evidence is generally admissible unless objected to. Jurisdiction is not discretionary and no party — or court — can create it (or allow it) where it doesn't otherwise exist.

  • I would have thought removal would be a jurisdictional issue in that the court itself would be required to examine the issue on its own. And if that were true it wouldn't matter when the fault were brought to the court's attention.

  • Please remember that we've phrased the question to involve only a procedural defect in the removal process. By hypothesis, there is federal jurisdiction over the case; the error was in waiting too long to remove. If the plaintiff, in turn, waits more than 30 days to move to remand, the plaintiff has waived the procedural error, and the case can proceed to judgment in federal court.

  • Jim and Mark:

    Your ethics hypo brings back memories. . . . . When I was a much younger lawyer, I authored an article in For the Defense which specifically addressed the subject you have raised. 34 FTD 2 (December 1992. It specifically addressed the various circumstances in which a defendant might remove a case to federal court based on the presence of subject matter jurisdiction even though there might be some other statutory or jurisprudential bar to removal. The thesis was that such technically prohibited removals were proper because the federal rules had recently been amended to place a 30 day time frame on your opponent to point out those defects. If they failed to do so, then your case remained in federal court. When I came out with this article, there were those who told me that they were uncomfortable with the approach, however, I am still of the belief that such removals are proper and ethical. If not, why have the 30 day time period? I think that your analogy to the admission of evidence that could have been objected to (but was not) is dead-on.



  • I think both scenarios are unethical. ABA Model Rule 3.1 says, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

    A lawyer's ethics aren't contingent on opposing counsel being vigilant. The test for ethical behavior isn't at all contingent on the likelihood of escaping notice or sanction.


  • Anonymous

    But Cullen, if plaintiff can effectively consent to an untimely removal motion, then why isn't it a nonfrivulous basis to argue, "although my removal was filed beyond the time limit, the time limit is nonjurisdictional and plaintiff has the opportunity to object to federal jurisdiction if he wishes."? To put it another way, what if opposing counsel tells you directly that he does not object to your filing an untimely removal motion? Does it still run afoul of Rule 3.1?

  • Good question Anonymous on the implications of opposing counsel consenting to the late removal. If opposing counsel has consented to the late action, then I think there is a good faith factual basis to believe removal is permitted. I don't know whether a court would agree to the late removal even with the parties' consent, so the better course in that circumstance would be to file the late removal and note to the Court that the parties had consented to the late filing and seeking the Court's approval of the same. Or, noting for the Court that the parties intended to insist on the Court asserting jurisdiction if they have a good faith legal basis to believe jurisdiction in the Court might be bestowed simply by the parties' agreement (a legal proposition that is less than obvious in other contexts).

    I think opposing counsel's consent in your hypothetical gives the removing lawyer some good faith toe hold for attempting to remove. Without that consent, and heeding the call of the hypothetical that there is no other good faith basis to believe removal is permissible, I think putting before a court a position that the lawyer knows to be unsupported by law is unethical.

  • I think that the line should be drawn at the lack of a good-faith argument. If you don't have a good-faith argument that evidence is inadmissible, then seeking to present it is unethical.

    I am not saying one has to believe the evidence is admissible. I simply think one needs to believe that there is a good faith argument that can be made that it should be admissible in this case.

    These hypotheticals are clear-cut because they are blatant. In any case where there IS any good-faith argument that the evidence should be admissible, I see no ethical problem submitting it.

    The same rule applies to the removal proceedings.

  • A removal beyond thirty days might be ethical if you flagged it to say that you are asking in good faith to reconsider the jurisdictional nature of the removal deadline. Your hypothetical rules out of the optioon, but reality is not so clean.