It is incumbent on appellate counsel for any appellant to conduct the preliminary legal research to determine whether the anticipated appeal would be frivolous in view of established controlling law. "The signature of an attorney" on any pleading, motion or other paper, including a brief, "constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is," inter alia, "warranted by existing law or a good faith argument for the extension, modification or reversal of existing law." Kentucky Rule of Civil Procedure, hereinafter CR 11; (emphasis added). "CR 11 places a burden upon counsel to make a reasonable inquiry into the basis of an action, both legally and factually, and forbids the filing of an action for an improper purpose like delay or harassment." Raley v. Raley, 730 S.W.2d 531 (Ky.App. 1987).

Ethical principles dictate the same result. In Kentucky "[a] lawyer shall not knowingly bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." Ky. Rules of Professional Conduct, Rule 3.1, SCR 3.130. See Leasor v. Redmon, 734 S.W.2d 462, 464, 466 (Ky. 1987).

Thus, when counsel for an appellant wishes to raise as error a trial court ruling which was made in conformity with controlling precedent, stare decisis is a formidable obstacle to changing the collective mind of the appellate court.

Adherence to precedent is a pillar of this nation's judicial system. "Appellate courts should follow established precedents unless there is a compelling and urgent reason to depart therefrom which destroys or completely overshadows the policy or purpose established by the precedent." Schilling v. Schoenle, 782 S.W.2d 630, 633 (Ky. 1990). "Unless the need to change the law is compelling, ... stability of the law is of sufficient importance to require that [the Kentucky Supreme Court] not overturn a precedent which itself is based upon a reasonable premise." Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky. 1987). These principles demonstrate the daunting task an appellant faces who challenges a controlling precedent and why it is essential to disclose the controlling adverse authority.

Where an appeal is frivolous under existing law, the only way the appeal will be nonfrivolous is if appellate counsel acknowledges the controlling adverse precedent and makes a good faith argument for reversing, extending or modifying that precedent.

An appellant's counsel may not defend his or her failure to disclose controlling adverse authority by suggesting that the brief was merely making a "good faith" argument to reverse existing law. Such an argument must be explicit, not implicit.

"An attorney must be clear in presenting his argument for what it is - if acceptance of the argument would require the extension, modification, or reversal of existing law, Rule 11 [of the Federal Rules of Civil Procedure] requires disclosure and precludes presentation of the argument as though it rested on existing law." Pierce v. Commercial Warehouse, 142 F.R.D. 687, 690 (M.D.Fla. 1992).

"There would be little point to [Federal Rule of Civil Procedure] 11 if it tolerated counsel making an argument for the extension of existing law disguised as one based on existing law." Golden Eagle Distributing Corp. v. Burroughs Corp., 103 F.R.D. 124, 127 (N.D. Cal. 1984). "The certification made by counsel signing the motion is not intended to leave the court guessing as to which argument is being made, let alone to permit counsel to lead the court to believe that an argument is supported by existing law when it is not." Id.

Appellate courts rightly expect that a litigator seeking relief on an appellate error would have revealed any adverse authority if it existed. Where no adverse authority is disclosed, appellate courts assume there is no controlling precedent which governs the assigned error.

Ethically, "[a] lawyer shall not knowingly ... make a false statement of ... law to a tribunal." Ky. Rules of Professional Conduct, Rule 3.3(a)(1), SCR 3.130. "Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal." Id., Rule 3.3, Comment (3). "A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities." Id. "There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation." Id., Rule 3.3, Comment (2).

In this ethical context an appellate lawyer must disclose clearly adverse controlling legal authority. The omission of such adverse authority will distort the appellate process and require the appellee to spend much of the appellee brief just correcting the omissions and misrepresentations generated by the appellant's unprofessional description of the pertinent law involving the appeal.

"The theory behind the [ethical] rule [of disclosure of adverse legal authority] is that the purpose of litigation is to promote truth and justice. The lawyer is not required to advocate the controlling authority, and may argue it should be distinguished or its application to the present case abandoned, but it still must be acknowledged so that an informed decision can be made." Robert H. Aronson, An Overview of the Law of Professional Responsibility, 61 Wash. L. Rev. 823, 864 (1986).

An appellant obviously faces a difficult dilemma when, because of a controlling precedent in the Kentucky Supreme Court, an appeal in the Court of Appeals is clearly frivolous. Knowing this, an appellant must disclose this legal reality to the Court of Appeals and attempt to make a "good faith" argument for reversal of the controlling precedent. By approaching this appeal in the only ethical, professional manner, counsel for the appellant would have to admit that: (1) the trial court's rulings below are correct under existing law; and (2) the Court of Appeals has no jurisdiction to reverse these controlling precedents. Such a "confession" would easily raise the "red flag" that the appeal is on its face frivolous.

Obviously, published decisions of the Kentucky Supreme Court are controlling precedents in the Kentucky Court of Appeals. The Court of Appeals "is compelled to follow precedent established by the decisions of the [Kentucky] Supreme Court." Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986). The Court of Appeals "is bound by and shall follow applicable precedents established in the opinions of the [Kentucky] Supreme Court." SCR 1.030(8)(a). The Court of Appeals has "no authority to change or disregard the [Kentucky] Supreme Court's precedent." Commonwealth v. Basnight, 770 S.W.2d 231, 238 (Ky.App. 1989).

Where an appeal in the Kentucky Court of Appeals is clearly controlled by precedents of the Kentucky Supreme Court, the Court of Appeals' appellate function is circumscribed. This does not mean, however, that the opinion of the Court of Appeals is unimportant in the advocate's efforts to overturn a controlling precedent of Kentucky's high court.

"[I]t is not [the] function" of the Court of Appeals "to establish new rules of law or enunciate changes in Kentucky jurisprudence." Tucker v. TriState Lawn & Garden, Inc., 708 S.W.2d 116, 118 (Ky.App. 1986). The Court of Appeals, "though required to follow precedent established by a higher court, can set forth the reasons why, in its judgment, the established precedent should be overruled but cannot, on its own, overrule the established precedent set by a higher court." Special Fund v. Francis, supra at 642; Tucker, supra at 118.

Appellate counsel challenging a Kentucky Supreme Court precedent in an appeal as of right in the Kentucky Court of Appeals should not assume that the only effective strategy is to bypass the intermediate appellate court, by seeking to transfer the appeal to the Kentucky high court. CR 74.02(1). Indeed, a favorable opinion from the Court of Appeals, albeit resignedly affirming the trial court below, may be the most persuasive factor in obtaining discretionary review by the Kentucky Supreme Court. CR 76.20(1).

An appellate litigator should decide carefully whether to challenge a controlling precedent, but, once the decision is made to seek to change the law, the brief should openly and candidly explain both the status of the law and the need for its reformation.

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