Making Unpublished Opinions Precedential: A Recipe for Ethical Problems & Legal Malpractice?

Abstract:     
This Article advances a relatively simple thesis - unpublished opinions should be non-precedential, at least until these opinions can be readily researched by all attorneys. Unfortunately, based upon the questionable assumption that technological advances have made unpublished opinions readily available, some jurisdictions have recently given unpublished opinions full precedential value and this trend appears to be the next frontier in the crusade over unpublished opinions. In truth, although unpublished opinions are increasingly available, many unpublished opinions are not as readily available as published opinions. By affording precedential value to these difficult to research unpublished opinions, jurisdictions will possibly create ethical and legal malpractice problems for attorneys.

This Article does not attempt to comprehensively report on which unpublished opinions, on both the state and federal levels, are readily available. Instead, it focuses upon the availability of Fifth Circuit unpublished opinions and shows an example of a jurisdiction which has made some of its unpublished opinions precedential, even though those opinions are difficult, and sometimes virtually impossible, to research. The Article ultimately makes two recommendations: (1) the Fifth Circuit should change its rule regarding the precedential value afforded to unpublished opinions, and (2) other jurisdictions should avoid the Fifth Circuit's mistake and only consider making unpublished opinions precedential when those opinions are readily available and can be comprehensively researched. By adopting these recommendations, courts will minimize the risk that attorneys will face ethical and legal malpractice problems for failing to use binding unpublished opinions in their client representation

Keywords: courts, unpublished opinions, research, precedent

Accepted Paper Series