A Legal Ethics Question: LAW OF THE CASE

Seth Barrett Tillman

DC Bar member

 

December 10, 2025

 

Ethics Query

ethics@dcbar.org

 

Dear Ethics Counsellor,

My understanding is then when a trial court decision has been reversed by a higher court, such as an intermediate court of appeals, a practitioner may only cite the trial (or lower) court decision in a brief or pleading (or other judicial submission) if the practitioner also reports that the trial court decision has been reversed. My question is whether this rule applies if the intermediate court of appeals has been itself reversed by a higher court, such as by a state supreme court or by the US Supreme Court?

For example, consider:

Anderson v. Griswold, Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo. Nov. 17, 2023) (Wallace, J.). This trial court decision was reversed by: Anderson v. Griswold, 543 P.3d 283 (Colo. Dec. 19, 2023) (per curiam). And the Colorado Supreme Court decision was itself reversed by the US Supreme Court in: Trump v. Anderson, 601 U.S. 101 (Mar. 4, 2024) (per curiam).

As a result of the US Supreme Court’s reversing the Colorado state supreme court, the state trial court decision was (or became again) the operative order in the case, and the state trial court opinion remains good, persuasive case law. Given that the trial court decision is still good law, when a practitioner cites this trial court decision is the practitioner required to indicate the subsequent reversal by either or both the Colorado Supreme Court or by the US Supreme Court?

I trust if you answer my query, I can show your answer to third parties.

Sincerely,

Seth

Seth Barrett Tillman, Associate Professor 

-------------------------------------------------------------------------------------------

DC Bar 

Good Afternoon, Seth,

As ethics counsel, I am authorized to provide informal guidance on questions that arise under the D.C. Rules of Professional Conduct (D.C. Rules) only, and I cannot give legal advice. You must exercise your independent professional judgment and you are responsible for your future conduct. Guidance does not constitute a safe harbor, and guidance from this office does not bind the Office of Disciplinary Counsel or any court.

The D.C. Rules do not directly address legal citation form.

D.C. Rules 3.3 (Candor to the Tribunal), 4.1 (Truthfulness in Statements to Others), and 8.4(c) (Misconduct) provide guidance on candor to the court and misrepresentations of law. Rule 3.3(a) prohibits a lawyer from making legal arguments based on a knowingly false representation of law, and Rules 4.1(a) and 8.4(c) prohibit a lawyer from making misrepresentations, which includes providing partially true but misleading statements or omissions that are the equivalent of affirmative false statements. Additionally, a lawyer must comply with court rules (Rule 3.4(a) and Rule 8.4(d)). Thus, to the extent citation form is dictated by court rules, a lawyer must comply, and failure to do so would violate the D.C. Rules.

As you note, if you are citing to or relying on a decision from a trial (or lower) court that was subsequently reversed by a higher court (at any level), failing to advise the court of the reversal is a misstatement/misrepresentation of law and therefore likely a violation of several of the D.C. Rules mentioned above. However, if a lower court decision was reversed on appeal, and then subsequently a higher court reversed the appellate court and agreed with the lower court, it would be ethical to argue the lower court’s holding which is, at that point, the law.

How to properly cite the lower court case conveying such a history is outside the scope of the D.C. Rules, and better left to the formatting rules of the tribunal (again to which the lawyer must comply), and/or blue book or equivalent.

Thank you,

[name]

Legal Ethics Counsel, Regulation Counsel

District of Columbia Bar

Seth Barrett Tillman, ‘A Legal Ethics Question: LAW OF THE CASE,’ New Reform Club (Dec. 15, 2025, 9:37 AM), <https://reformclub.blogspot.com/2025/12/a-legal-ethics-question-law-of-case.html> (bold follows the original);