26 Miss. C. L. Rev. 185 (Cite as: 26 Miss. C. L. Rev. 185) C Mississippi College Law Review 2006-2007 Article *185 MAKING UNPUBLISHED OPINIONS PRECEDENTIAL: A RECIPE FOR ETHICAL PROBLEMS & LEGAL MALPRACTICE? Andrew T. Solomon [FNa1] Copyright (c) 2007 Mississippi College Law Review; Andrew T. Solomon Abstract This Article advances a relatively simple thesis--unpublished opinions should be non-precedential, at least until these opinions can be readily researched by all attorneys. [FN1] Unfortunately, based upon the questionable assumption that technological advances have made unpublished opinions readily available, some jurisdictions have recently given unpublished opinions full precedential value and this trend appears to be the next frontier in the crusade over unpublished opinions. In truth, although unpublished opinions are increasingly available, many unpublished opinions are not as readily available as published opinions. By affording precedential value to these difficult to research unpublished opinions, jurisdictions will possibly create ethical and legal malpractice problems for attorneys. This Article does not attempt to comprehensively report on which unpublished opinions, on both the state and federal levels, are readily available. Instead, it focuses upon the availability of Fifth Circuit unpublished opinions and shows an example of a jurisdiction which has made some of its unpublished opinions precedential, even though those opinions are difficult, and sometimes virtually impossible, to research.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makes two recommendations: (1) the Fifth Circuit should change its rule regarding the precedential value afforded to unpublished opinions, [FN2] and (2) other jurisdictions should avoid the Fifth Circuit's mistake and only consider making unpublished opinions precedential when those opinions are readily available and can be comprehensively researched.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will minimize the risk that attorneys will face ethical and legal malpractice problems for failing to use binding unpublished opinions in their client representation. I. Introduction. 187 II. Unpublished 188 Opinions & Citation Rules for Unpublished Opinions. A. The 189 Emergence of Unpublished Opinions. B. The 191 Emergence of No-Citation Rules: Prohibiting Citation of Unpublished Opinins. C. The Rule of 193 Law Fightos Back. D. The 196 Anastasoff Firestorm. E. Current 197 Developments: FRAP 32.1 & The Trend Toward Allowing Citation of Unpublished Opinions. F. The Fifth 201 Circuit's Peculiar Unpublished Opinion Rule. III. The 203 Availability of Unpublished Opinions: The Early Years to the Present Day. A. The Early 204 Years: Full-Text Unpublished Opinions from the Court & Dispositional Table Decisions in the Federal Reporter. B. The 205 Availability of Unpublished Opinions Evolves: Full-Text Opinions on Westlaw and LEXIS. C. The Federal 207 Appendix: Publishing "Unpublished" Opinions. D. The 208 E-Government Act & Court Websites. E. The 211 Availability of Fifth Circuit Unpublished Opinions. F. The Problem 215 Faced by Fifth Circuit Attorneys: Unpublished Opinions are Binding, But Not Readily Available. IV. The Ethical & 216 Legal Duty to Conduct Competent Research. A. Model Rule 217 1.1: Competent Representation. B. Model Rule 218 3.3: Duty of Candor. C. Federal 218 Rule of Civil Procedure (FRCP) 11 & Federal Rule of Appellate Procedure (FRAP) 38. D. Legal 219 Malpractice. V. Recommendations 220 for the Precedential Value of Unpublished Opinions. *187 I. Introduction In recent years, the rules regarding the citation of unpublished opinions have undergone a dramatic change. [FN3] Courts traditionally prohibited attorneys from citing unpublished opinions. More recently, courts increasingly allow attorneys to cite unpublished opinions. [FN4] Some courts even allow citation of unpublished opinions as binding precedent. [FN5] This dramatic change occurred for a variety of reasons, including constitutional concerns about limiting the precedential effect of prior opinions, judicial concerns about promoting uniformity of decisions and assuring that similar cases received similar results, and legitimacy concerns about avoiding the appearance of a secret body of law. The entire controversy over whether courts should allow citation of unpublished opinions has spawned an incredible amount of legal scholarship and nearly every aspect of this controversy has been extensively analyzed. [FN6] Surprisingly, however, one of the primary underlying assumptions for the shift toward allowing citation of unpublished opinions--that technological advances have made unpublished opinions "readily available" to all attorneys--has largely escaped scrutiny. No article has extensively examined the truth (or myth) of whether technological advances have indeed made these unpublished opinions "readily available" to all attorneys. Furthermore, no article has comprehensively considered how these new citation rules might create ethical problems and legal malpractice concerns for attorneys. This Article focuses on these noticeable gaps in the literature. More specifically, this Article focuses upon the Fifth Circuit's rule [FN7] that allows citation of unpublished opinions and shows the problems that can be created when unpublished opinions can be cited as binding precedent, even though these unpublished opinions are difficult, if not impossible, to research. In explaining how fully precedential, unpublished opinions can potentially cause ethical and legal malpractice problems, the Article is divided into five sections. This introductory section provides an overview of the *188 emerging trend toward allowing citation of unpublished opinions and questions whether this change might lead to legal malpractice and ethical problems for attorneys. The second section explores the history of unpublished opinions and the rules addressing the citation of these opinions. It specifically traces the emergence of, and justifications for, unpublished opinions and the accompanying "no-citation" rules that initially prohibited citation of those opinions. It also explains the recent trend toward allowing citation of unpublished opinions and, in some cases, allowing citation of unpublished opinions as binding precedent. It specifically examines the Fifth Circuit's quirky citation rule for unpublished opinions, which treats pre-1996 unpublished opinions as precedential and post-1996 unpublished opinions as persuasive. [FN8] The third section focuses on whether unpublished opinions are "readily available" to attorneys via printed materials (e.g., West reporters), fee-based online services (e.g., Westlaw and LEXIS), or free-online services (e.g., the official court websites). It ultimately shows that unpublished opinions are increasingly available on both the federal and state level, but some unpublished opinions are not "readily available" to attorneys, even after the enactment of the E-Government Act. [FN9] It uses the Fifth Circuit as an example of a jurisdiction where an attorney would have enormous difficulty effectively and comprehensively researching binding Fifth Circuit unpublished opinions. The fourth section examines a lawyer's ethical and legal duty to conduct competent legal research. It specifically explores how the ethical, procedural, and legal malpractice rules might deal with an attorney's failure to find and disclose binding caselaw, using the example of an attorney who fails to find binding unpublished Fifth Circuit decisions. The fifth section makes recommendations based upon the intersection between the rules allowing citation of unpublished opinions, a lawyer's duty to conduct competent legal research, and the flawed assumption that unpublished opinions are "readily and easily available." More specifically, it cautions against adopting rules that make unpublished opinions fully precedential before such opinions can be comprehensively researched. It also recommends that the Fifth Circuit should reconsider its rule regarding the citation of unpublished opinions. II. Unpublished Opinions & Citation Rules for Unpublished Opinions For more than a century, commentators have warned about two potential problems caused by the proliferation of cases: (1) the ability of lawyers to purchase, read, and comprehend the burgeoning caseload, [FN10] and (2) the *189 ability of courts to function effectively with an increasing caseload. [FN11] In essence, they argued that judges were spending too much time writing opinions in "meaningless" cases (i.e., cases that did not meaningfully advance the development of the law), and lawyers were spending too much time researching these "meaningless" cases. The burgeoning caseload [FN12] threatened to paralyze the court's ability to develop a cohesive body of law, and also the legal profession's ability to effectively and efficiently research this law. As one commentator noted, in 1972, "there are limits on the capacity of judges and lawyers to produce, research, and assimilate the sheer mass of judicial opinions. Those limits are dangerously near at present and in some systems may already be exceeded." [FN13] A. The Emergence of Unpublished Opinions Although some federal circuits, in the 1940s, considered issuing unpublished opinions as a means to manage its burgeoning caseload, [FN14] the federal courts of appeals continued to publish virtually every case decision well into the early 1960s. [FN15] In 1964, however, because of the rapidly growing number of published opinions and the reluctance of federal courts to issue unpublished decisions, the Judicial Conference of the United States [FN16] resolved that judges should publish "only those opinions which are of general precedential value and that opinions authorized to be published be *190 succinct." [FN17] In the early 1970s, after the federal circuits failed to respond to this original resolution and many circuits had continued to publish most of their opinions, [FN18] the Judicial Conference mandated that each circuit adopt a "publication plan" for managing its caseload. [FN19] Furthermore, in 1973, the Advisory Council on Appellate Justice [FN20] urged the federal circuits to issue specific criteria for determining which opinions to publish. [FN21] The Advisory Council hoped that limiting publication would preserve judicial resources and reduce costs by increasing the efficiency of judges. Within the next year, each federal circuit had submitted its publication plan to the Judicial Conference and the circuits began to implement these plans. Although each circuit devised its own guidelines for deciding when to issue a published or unpublished ruling, the guiding principle was whether the court's ruling served its "dispute-settling" or "law-making" function. [FN22] If a court's ruling applied well-established and uncontroversial principles of law to ordinary facts, then the decision primarily served the court's "dispute-settling" function and would be unpublished. [FN23] By issuing an unpublished opinion, the parties to the dispute would get an explanation for the court's decision, but the "unimportant" (hence, unpublished) case *191 would not clog the reporters or become a part of the "real" body of decisional law. [FN24] By contrast, if the court's ruling set forth new law, or applied settled law to an unusual or highly unique factual situation, or further explored the contours of existing law via an extended discussion or criticism of settled law, then the decision primarily served the court's "law-making" function and would be published. [FN25] Thus, in theory, the circuits began to limit the published precedent to those cases that served a precedential "law-making" function and labeled all other "routine, straightforward, redundant, or otherwise unimportant" precedent as "not for publication." [FN26] By beginning to selectively publish precedent, the circuits were decreasing research costs and increasing judicial efficiency. [FN27] Most importantly, judges did not have to spend an inordinate amount of time on every case and, instead, could focus their time and energy on the important "law-making" cases (i.e., the ones to be published). Fewer published decisions also meant fewer volumes for libraries to purchase and fewer cases for attorneys to research. B. The Emergence of No-Citation Rules: Prohibiting the Citation of Unpublished Opinions Shortly after federal courts began to issue unpublished opinions, these courts also adopted rules restricting the citation of unpublished opinions. [FN28] These rules also frequently addressed the precedential value (or lack thereof) to be accorded to these unpublished opinions. Most circuits adopted citation rules that either prohibited or strongly discouraged the citation of unpublished opinions and deemed these opinions non-precedential. These rules became known as "no-citation" rules [FN29] and were seen as essential companions to the rules allowing the issuance of unpublished *192 opinions, because allowing citation would have eliminated many of the benefits of unpublished opinions. In fact, without limits on citation, there would be "virtually no distinction between published and unpublished [opinions]." [FN30] According to one judge, no time would be saved if unpublished opinions could be cited, because judges would then have to prepare unpublished opinions "as if they were creating precedent." [FN31] In simple terms, allowing citation would have forced judges to spend more time on unpublished opinions, and this would have frustrated the primary purpose, judicial economy, for issuing unpublished opinions. [FN32] Instead, the new rules only accorded precedential value to published opinions, and only these "law-making" decisions needed careful crafting. In addition to judicial economy, the "no-citation" rules were justified on a number of other grounds. The no-citation rules "leveled the playing field" by eliminating a possible advantage to "repeat" players, especially institutional litigants who could compile a bank of unpublished opinions. [FN33] By limiting citation, this advantage would disappear. No-citation rules also protected smaller firms and solo practitioners who could not afford the costs associated with researching unpublished opinions. [FN34] The rules also served a judicial economy function by prohibiting the "citation of cases of no independent interest." [FN35] After all, according to the rules governing the issuance of unpublished opinions, these opinions would not be of any interest to "persons other than the parties to [the particular] case, because the opinion neither establishes a new rule of law, modifies an existing rule of law, applies an existing rule of law to distinct facts, nor concerns any issue of significant public interest." [FN36] For many years, because of the justifiable reasons for prohibiting attorneys from citing these unpublished and non-precedential opinions, no-citation rules remained relatively uncontroversial. It was also significant that most courts were still publishing the vast majority of their decisions. Into the early 1980s, federal courts of appeals were publishing nearly 90% of their opinions. [FN37] However, by the mid-1980s, the publication rates for federal court of appeals decisions changed dramatically. By 1985, almost *193 60% of all federal court of appeals decisions were unpublished. [FN38] Today, as the table below indicates, more than 80% of all federal court of appeals decisions are unpublished. [FN39] Table #1: The Dramatic Increase in Federal Court of Appeals Unpublished Opinions Year Opinions Published Unpublished % Issued Opinions Opinions Unpublished 1981FN 12,070 10,767 1,303 11.2 % [FN40] 1985FN 17,118 7,104 10,014 59.4 % [FN41] 1990FN 21,006 6,738 14,268 68.4 % [FN42] 1995FN 27,772 6,788 20,984 75.9 % [FN43] 2000FN 27,516 5,621 21,895 79.8 % [FN44] 2005FN 29,913 5,504 24,409 81.6 % [FN45] C. The Rule of Law Fights Back As the federal courts of appeals began to issue a greater number of unpublished opinions, several legal commentators and judges began to debate the efficacy of issuing such a large percentage of unpublished, non-precedential opinions and then prohibiting citation of those unpublished opinions. [FN46] For the most part, the debate did not focus upon whether courts could or should issue unpublished opinions. Rather, the debate focused upon whether courts should limit the citation and precedential value of these unpublished opinions. *194 Scholars became concerned that no-citation rules had effectively taken a large body of law (the unpublished opinions) outside the realm of stare decisis [FN47] and had created a "secret" body of unpublished law. [FN48] Because of no-citation rules, even when the facts and issues in a prior unpublished decision mirrored the facts and issues in an attorney's current case, the attorney was prohibited from bringing the unpublished opinion to the court's attention. This prohibition, according to critics of the no-citation rules, led to inconsistent and seemingly arbitrary decision-making in the federal courts, and thereby violated one of the foundational principles of the American legal system: stare decisis, which ensures that like cases will be treated alike. Mounting evidence also revealed that unpublished opinions were not being limited to easy, uncontroversial cases, as originally intended. In theory, since unpublished decisions were supposed to be reserved for routine "dispute-settling" cases and not for difficult "law-making" cases, unpublished decisions should have been issued only in cases involving "routine applications of existing law with which all judges would agree." [FN49] For that reason, virtually every unpublished appellate decision should have unanimously affirmed the lower court ruling. [FN50] The evidence, however, showed a growing number of reversals in unpublished decisions. [FN51] The statistics indicated an increase in both the total, and percentage, number of reversals in unpublished opinions. During 1978 and 1979, 1,018 reversals occurred in unpublished opinions and this represented 14% of unpublished cases. By contrast, during the year 2000, 2,156 reversals occurred in unpublished opinions, and this represented 21% of unpublished cases. [FN52] *195 Similar to the increasing number of reversals, the number of dissenting and concurring opinions in unpublished opinions also flourished. As several commentators noted, "dissents and concurrences are, by definition, controversial [because] the court disagree[d] either about the result to be reached or about the method used to reach it." [FN53] By definition, dissents and concurrences provide proof that an unpublished decision was not a "routine application of existing law." Despite this proof, unpublished opinions currently contain significant numbers of dissenting or concurring opinions. [FN54] These trends seem to indicate that an increasing number of difficult cases are being issued as unpublished opinions. Interestingly, in 1978, the United States Supreme Court was asked to rule on the constitutionality of unpublished opinions. In Browder v. Director, Department of Corrections, [FN55] the petitioner contended that "a federal court of appeals lacks the power to withhold any of its opinions from publication and to a priori deprive such unpublished opinions of precedential value." [FN56] An amicus brief filed in the case argued that unpublished opinions were unconstitutional, based upon First Amendment and due process grounds. [FN57] Despite these arguments, the Court decided Browder on other grounds and specifically stated that the issues regarding the constitutionality of unpublished opinions would be left "to another day." [FN58] That day has not yet arrived. The Supreme Court, on other occasions, has criticized the federal courts of appeals for issuing unpublished opinions. [FN59] In one case, the Court deemed it "remarkable and unusual that although the Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion." [FN60] The Court has also clearly indicated it will not hesitate to grant certiorari and review unpublished decisions. [FN61] Furthermore, the Court has recognized unpublished opinions as precedent (despite circuit rules that would indicate otherwise) for purposes of determining whether a circuit split exists. On a few occasions, the Court "cited to unpublished opinions in support of the proposition that the issue before *196 the Court involved a split among the circuits" [FN62] and "occasionally granted certiorari to review an unpublished court of appeals decision, citing a split between th[e unpublished] decision and the published decisions of other circuits." [FN63] In 1999, perhaps picking up on the United States Supreme Court's uneasiness with unpublished opinions, one of the federal court's preeminent jurists, Richard S. Arnold, questioned whether citation rules that denied precedential value and prohibited citation of unpublished opinions violated Article III of the United States Constitution. [FN64] In an article seemingly written in response to Judge Arnold's query, Ninth Circuit Judges Alex Kozinski and Stephen Reinhardt rigorously defended the constitutionality of prohibiting citation of unpublished opinions. [FN65] These articles previewed the forthcoming firestorm of controversy over unpublished opinions. D. The Anastasoff Firestorm In truth, although the proper role of unpublished opinions in our legal system had sparked some debate, one event truly set fire to this debate--the Anastasoff case. [FN66] In that case, Judge Arnold held that the Eighth Circuit was bound by an earlier unpublished Eighth Circuit decision with virtually identical facts. [FN67] The court noted that the Eighth Circuit's Rule that "disfavored" citation of unpublished opinions expanded "judicial power beyond the limits set by Article III [of the United States Constitution] by allowing [the court] complete discretion to determine which judicial decisions will bind us and which will not." [FN68] The court held that "[i]nsofar as it limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional." [FN69] The court reasoned that adhering to rules announced in previous opinions, even unpublished ones, was impliedly codified in Article III of the United States Constitution based upon the framers' understanding of the doctrine of stare decisis. [FN70] Although the decision was ultimately vacated on other grounds by an en banc Eighth Circuit ruling, [FN71] the panel decision set off a firestorm of controversy over what had become *197 the routine practice of issuing non-precedential, unpublished opinions. Because of its unique constitutional interpretation and enormous practical implications, [FN72] the decision sparked an incredible debate about the proper role of unpublished opinions in our federal and state court systems. [FN73] E. Current Developments: FRAP 32.1 & The Trend Toward Allowing Citation of Unpublished Opinions In response to Anastasoff and the enormous amount of legal scholarship that criticized no-citation rules, [FN74] many federal courts started to relax their no-citation rules. Within a few years, nine federal circuits began to allow citation of unpublished opinions. [FN75] Of those nine federal circuits, six circuits allowed unpublished opinions to be cited for their "persuasive" value, [FN76] two circuits had hybrid rules whereby some unpublished opinions *198 were binding precedent and some unpublished opinions were persuasive precedent, [FN77] and one circuit did not specify the precedential weight to be given to unpublished opinions. [FN78] Of course, this also meant that four federal circuits still absolutely prohibited citation of unpublished opinions. [FN79] Even more significant than these trends, after years of debate, [FN80] the Judicial Conference of the United States and the United States Supreme Court recently approved Federal Rule of Appellate Procedure (FRAP) 32.1, which requires all federal appellate courts to allow citation of unpublished federal judicial opinions issued on or after January 1, 2007. [FN81] Interestingly, FRAP 32.1 is extremely limited, as it does not address the trickiest question raised by any rule authorizing citation of unpublished opinions. The rule "says nothing about what [precedential] effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court." [FN82] In other words, it does not address whether attorneys should be allowed to cite these unpublished opinions as binding precedent or merely as persuasive authority. It also does not require or forbid the issuance of unpublished opinions, or provide any guidance on which opinions should *199 be published or unpublished. It also does not address how the federal circuits should treat unpublished opinions issued prior to January 1, 2007. Further, it does not specifically address whether the new citation rule applies in the federal district courts. [FN83] Some of these issues have been resolved by new local rules adopted by the individual circuits in response to FRAP 32.1. The four circuits that absolutely prohibited citations of unpublished opinions have already significantly revised their local rules. [FN84] The nine circuits that allowed citation of unpublished opinions prior to FRAP 32.1 have slightly modified their local rules so as to fully comply with the new federal rule. [FN85] During this same time period, states have also struggled with the issue of unpublished opinions. Today, virtually every state has addressed, either via statute, court rule, or judicial opinion, the citation and precedential value of unpublished opinions. According to one recent study, about twenty-five states still absolutely prohibit citation of unpublished opinions, except for purposes of res judicata, collateral estoppel, or law of the case doctrines. [FN86] These states also routinely classify unpublished opinions as non-precedential. Wisconsin, for example, explicitly prohibits counsel from citing to unpublished opinions even for "persuasive and informational purposes." [FN87] The Wisconsin Supreme Court prohibited citation of unpublished opinions because allowing citation would have increased the burden and cost of legal research, and thereby increased the cost of competent client representation. [FN88] The court specifically noted that: [The] additional burden on the practitioner, with a concomitant increase in fees to the client, would not be alleviated by the availability of services printing the unpublished opinions or their inclusion in automated legal research tools or availability at law libraries. All law offices are not created equal: differences in geographical location, client base and economic resources create an inequality in the ability of a practitioner, whether a lawyer practicing alone in a small town or one practicing in a 35-member firm in a large metropolis, *200 to easily and affordably conduct the research needed for adequate client representation. [FN89] The court implicitly rejected the notion, espoused in much of the literature, that unpublished opinions are readily and easily available. Although many states still absolutely prohibit citation of unpublished opinions, several other states have recently relaxed the prohibitions against citing unpublished opinions. At least twelve states now allow unpublished opinions to be cited for persuasive value. [FN90] In some cases, even though the court rule absolutely prohibited citation of unpublished opinions, the courts have permitted such citation for persuasive purposes. Some of these courts reconsidered the rules absolutely prohibiting citation of unpublished opinions because such an absolute prohibition resulted in "inconsistent or even irreconcilable decisions." [FN91] In addition to the states that now allow the citation of unpublished opinions for persuasive purposes, five states recently began allowing unpublished opinions to be cited as precedent. [FN92] In 2002, for example, the Utah Supreme Court struck down its no citation rule and held that all decisions, both published and unpublished, could be cited as precedent. [FN93] Also, *201 in 2002, the Ohio Rules Committee implemented a change to its unpublished opinion rule and allowed "all court of appeals opinions issued after May 2002 [to] be cited as legal authority and weighed as deemed appropriate by the courts." [FN94] F. The Fifth Circuit's Peculiar Unpublished Opinions Rule The Fifth Circuit has perhaps the quirkiest rule regarding the citation and precedential value of unpublished opinions--all unpublished opinions can be cited, but older unpublished opinions are binding, whereas newer unpublished opinions are persuasive. More specifically, the Fifth Circuit allows citation of all unpublished opinions, but "unpublished opinions issued on or after January 1, 1996 are not precedent . . . [but] may, however, be persuasive" (emphasis added). [FN95] By contrast, "unpublished opinions issued before January 1, 1996 are precedent." (emphasis added). [FN96] The Fifth Circuit's rule does caution, however, that "every opinion believed to have precedential value is published" and therefore the pre-1996 unpublished opinions "should normally be cited only when the doctrine of res judicata, *202 collateral estoppel or law of the case is applicable (or similarly to show double jeopardy, abuse of the writ, notice, sanctionable conduct, entitlement to attorney's fees, or the like)." [FN97] "Although this rule is framed to limit citations to unpublished opinions ('normally . . . cited only when the doctrine of res judicata, collateral estoppel or law of the case is applicable'), it has been [consistently] interpreted to render unpublished decisions before January 1, 1996, precedential." [FN98] In fact, every Fifth Circuit case that deals with unpublished opinions, except for one, [FN99] explicitly recognizes that pre-1996 unpublished opinions are fully binding precedent. [FN100] One scholar has noted that it is "schizophrenic" to allow citation of unpublished opinions, while simultaneously not releasing those opinions for distribution into the Federal Appendix or online. [FN101] Even more schizophrenic is a rule that affords full precedential value to older, harder to find unpublished opinions, while treating new, easier to find unpublished opinions as persuasive. But this precise situation is faced by attorneys practicing in the Fifth Circuit. Many attorneys in other jurisdictions may soon face similar problems because most jurisdictions now allow citation of unpublished opinions. At least seven jurisdictions even allow unpublished opinions to be cited as binding precedent, [FN102] and the precedential significance to be afforded to unpublished opinions is likely the next frontier in the debate over unpublished opinions. This impending debate should carefully consider the availability of unpublished opinions. *203 III. The Availability of Unpublished Opinions: The Early Years to The Present Day One of the primary justifications relied upon by the proponents of allowing citation of unpublished opinions has been the widespread assumption that technological changes have made unpublished opinions widely and readily available. [FN103] According to this assumption, the widespread availability of unpublished opinions eliminates any unfairness created by the earlier unequal access to unpublished opinions. [FN104] In other words, because all parties have increasingly equal access to the full-text of unpublished opinions, courts can now fairly permit citation of those opinions. [FN105] This section challenges the validity of this assumption by tracing, over time, the availability of federal appellate unpublished opinions. [FN106] In so doing, this section shows that unpublished opinions have indeed become more widely and readily available, but also shows that many unpublished opinions still cannot be comprehensively researched (i.e., they are still not widely, readily, and freely available). To prove that some unpublished opinions still cannot be comprehensively researched, this section relies upon a specific example--the lack of practical availability of Fifth Circuit unpublished opinions. *204 A. The Early Years: Full-Text Unpublished Opinions from the Court & Dispositional Table Decisions in the Federal Reporter In the 1970s, when federal courts of appeals first started to routinely issue unpublished opinions, full-text unpublished opinions were not widely and readily available. Full-text unpublished opinions were only distributed to the actual litigants and the district court from which the decision had been appealed. Some critics referred to these full-text unpublished opinions as "secret," but they were never secret and were always available to the public in the sense that anyone could "walk in off the street, pay the appropriate fee, and get a copy of any opinion or order of a court of appeals." [FN107] These full-text unpublished opinions, however, were not widely and readily available in the sense that they were not sent to the West Publishing Company for publication in the Federal Reporter [FN108] or elsewhere. The full-text opinions were also not available via Westlaw or LEXIS. [FN109] Despite not widely distributing the full-text of these unpublished opinions, the federal courts of appeals began widely distributing the dispositional information for these cases. This dispositional information included the case name, docket number, name of the original district court or agency, and final appellate disposition (e.g., affirmed, reversed). West included this information, in what became known as table decisions, in the Federal Reporter--a reporter devoted to published federal court of appeals decisions; [FN110] Westlaw and LEXIS also included these table decisions in their databases. From a research perspective, these table decisions were virtually useless; they only included dispositional information, and they were not topically indexed (i.e., in a West Digest) because they contained no substantive law. For this reason, most attorneys and the general public could not research the substantive law contained in these early unpublished opinions; the full-text for unpublished opinions were not readily available and the table decisions did not contain any substantive law. An attorney could only learn about the underlying substantive law by knowing about the existence of a relevant unpublished opinion and then requesting a copy from either the court, one of the parties, or an organization that collected unpublished opinions. [FN111] In truth, this lack of availability was not problematic for two *205 reasons. First, since unpublished opinions were confined to cases that did not "break any new legal ground," attorneys and the general public did not generally need these opinions. In theory, unpublished opinions merely restated settled areas of law from published decisions that attorneys could research. Second, since unpublished opinions did not "add to the law," most no-citation rules classified them as non-precedential and non-citable, and attorneys could cite published cases for the same legal principles. In other words, since the readily available published cases contained the same law, attorneys could research and cite those published cases and did not need to research and cite unpublished cases. B. The Availability of Unpublished Opinions Evolves: Full-Text Opinions on Westlaw and LEXIS Even though attorneys, at least in theory, did not need access to unpublished opinions to comprehensively research the binding law, unpublished opinions soon became more widely available. Beginning in the mid-1980s, some federal circuits began releasing the full-text of their unpublished opinions to Westlaw and LEXIS. As the table below indicates, in 1985, the Sixth Circuit became the first circuit to release the full-text of its unpublished opinions. By 2005, every federal circuit released the full-text of its unpublished opinions. *206 Table #2: Unpublished Opinions - Availability as Table Decisions and Full-Text Opinions [FN112] Federal Circuit Table Decisions Full-Text on Westlaw Decisions on Westlaw ........ 1st 1974 1992 .................... 2nd 1974 1995 .................... 3rd 1974 2002 .................... 4th 1974 1986 .................... 5th 1974 2003 .................... 6th 1974 1985 .................... 7th 1974 1990 .................... 8th 1974 1992 .................... 9th 1974 1988 .................... 10th 1974 1990 ................. 11th 1981 2005 ................. D.C. 1974 1988 ................. Federal 1974 1987 ........ When the federal circuits first began releasing the full-text of these unpublished opinions, the Federal Reporter still published the dispositional table decisions for these unpublished opinions, and the full-text of these unpublished opinions were only available online via Westlaw and LEXIS. In 2005, after the Eleventh Circuit became the last circuit to release the full-text of its unpublished opinions, attorneys with access to Westlaw or LEXIS could, for the first time, comprehensively research the substantive law decided in nearly every federal appellate unpublished opinion. The availability of these unpublished opinions via Westlaw and LEXIS started to blur the distinction between published and unpublished opinions. [FN113] It *207 must be stressed, however, that Westlaw and LEXIS provide uneven coverage of federal appellate unpublished opinions because the coverage depends upon the circuit involved and the date of the unpublished opinion. C. The Federal Appendix: Publishing "Unpublished" Opinions The next major shift in the availability of unpublished federal appellate opinions occurred in late 2001 when the West Publishing Company began to publish the Federal Appendix, a set of book reporters devoted, ironically, to the publication of unpublished federal appellate decisions. [FN114] The Federal Appendix initially only contained the full-text of unpublished appellate opinions from ten federal circuits. [FN115] To make these full-text unpublished opinions fully researchable, West published these opinions in the same manner as ordinary published opinions--West's attorneys assigned headnotes, topics, and key numbers to the cases, and then included these headnotes in the West Federal Digest, a print digest used by attorneys to research federal law. [FN116] In addition to publishing the full-text of unpublished opinions from ten federal circuits, the Federal Appendix also included the table decisions from the three federal circuits that still refused to provide the full-text of its unpublished opinions. [FN117] By 2005, however, the full-text of nearly every federal appellate opinion was published in either the Federal Appendix or the Federal Reporter, [FN118] and this further blurred the distinction between published and unpublished federal appellate opinions. Thus, the Federal Appendix has made the label "unpublished" federal circuit opinion a misnomer because virtually every federal circuit opinion is now published in a book reporter, either the Federal Reporter or *208 the Federal Appendix. [FN119] For recently released federal circuit opinions, only two significant differences exist between published and unpublished opinions: (1) published opinions are published in the Federal Reporter and available online via Westlaw and LEXIS, whereas unpublished opinions are published in the Federal Appendix and available online via Westlaw and LEXIS, and (2) published opinions have full precedential value, whereas most unpublished opinions, depending upon the local circuit rule, are not fully precedential. [FN120] D. The E-Government Act & Court Websites The final major shift in the availability of federal circuit unpublished opinions occurred when Congress passed the E-Government Act. [FN121] Even prior to the E-Government Act, several federal appellate courts maintained websites on which they placed both published and unpublished decisions. Most of these websites, however, had primitive or nonexistent search engines for case retrieval purposes. [FN122] The E-Government Act changed the landscape by requiring all federal appellate opinions, both published and unpublished, to be made available online in a "text searchable format." [FN123] More specifically, each federal circuit website was required to provide "[a]ccess to the substance of all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter, in a text searchable format." [FN124] In addition, the Act required that all written opinions (issued after the effective date of section 205) remain available online. The official guidance provided by the Judicial Conference defined "written opinion" as "any document issued by a judge or judges of the court, sitting in that capacity that sets forth a reasoned explanation for a court's decision." [FN125] Yet, despite claims that the E-Government Act and advances in computer-assisted-legal-research have solved the accessibility problem by making unpublished opinions freely and readily available on text-searchable *209 court websites, [FN126] unpublished opinions remain quite difficult to comprehensively research. Even after the E-Government Act, many court websites still have searchability problems and numerous other deficiencies, including the following: * Many court websites have relatively primitive search engines that do not compare in functionality to the sophisticated search engines used by Westlaw and LEXIS. [FN127] * Many court websites do not allow Boolean searching, but rather some unsophisticated form of key word searching. [FN128] * Despite the E-Government Act's requirement of text-searchable opinions, three federal circuits do not allow keyword searching and thus are not text-searchable. [FN129] * Many court websites provide only cursory online "help," and these "help" features fail to adequately explain the specific search functions. [FN130] An attorney-researcher using these websites will struggle to conduct effective research because knowing how a search engine processes search terms is essential to effective searching. * Four circuits provide no online "help" features, and researching on these websites is even more problematic. [FN131] * Ten of the thirteen circuits generate search results that do not include case descriptions or abstracts. The results generated by the searches merely list case names without any description of the cases. [FN132] An attorney researcher using these websites will be unable to differentiate between applicable and inapplicable cases displayed in the results. *210 * Many websites only contain "those cases that have been loaded since their inception, which is rarely more than five or six years' worth of cases." [FN133] Currently, four circuit websites do not even convey the years covered by the website's database. [FN134] An attorney-researcher using these websites will not know what years are covered (and not covered) by the website's database. Without an exhaustive and comprehensive database containing all of a jurisdiction's unpublished opinions, an attorney cannot comprehensively research the law contained in these unpublished opinions. For these reasons, despite the increasing availability of federal appellate unpublished opinions via Westlaw, LEXIS, and the Federal Appendix, unpublished opinions are not as readily available as published opinions. Westlaw and LEXIS have uneven coverage; the Federal Appendix only contains unpublished opinions issued since late 2001; and court websites frequently contain only a fraction of the jurisdiction's unpublished opinions and have significant searchability and retrieval problems. Thus, whereas all federal court of appeals published opinions are published in the Federal Reporter and available online via Westlaw and LEXIS, many federal court of appeals opinions are not as available or easily accessible. Consequently, an attorney will have a difficult time comprehensively researching the unpublished opinions issued by a circuit. While evaluating the availability of unpublished opinions in every state is beyond the scope of this article, state unpublished opinions are even less available than federal unpublished opinions for two primary reasons: (1) Westlaw and LEXIS have devoted less time and resources to comprehensively adding state unpublished opinions to their databases, and (2) the E-Government Act only mandates that federal unpublished opinions be posted to federal court websites. [FN135] A recent study highlights the chaotic availability of unpublished opinions in one state--Texas. [FN136] The study concluded that the availability of unpublished opinions from Texas's fourteen intermediate appellate courts [FN137] "varied considerably from court to court." [FN138] The Texas Supreme Court has even noted that "the assumption *211 that unpublished opinions from all the courts of appeals are equally available" is not true because the fourteen Texas courts of appeals "have different policies, over different time periods, on how unpublished opinions are made available." [FN139] The Texas study ultimately concluded that some unpublished opinions are completely unavailable, some unpublished opinions are only available via Westlaw, some unpublished opinions are only available via LEXIS, some unpublished opinions are only available via the court websites, and some unpublished opinions are available from multiple sources. [FN140] This chaotic availability makes it virtually impossible to comprehensively research the state's unpublished appellate decisions. [FN141] An examination of Fifth Circuit unpublished opinions demonstrates the same chaotic availability and exemplifies the problems faced by attorneys trying to comprehensively research unpublished opinions. E. The Availability of Fifth Circuit Unpublished Opinions Similar to many jurisdictions, Fifth Circuit unpublished opinions have become increasingly available over the last few years. Yet, despite this increased availability, it remains difficult to comprehensively research Fifth Circuit unpublished opinions. Prior to mid-2003, full-text Fifth Circuit unpublished decisions were not readily available; they were only available as table decisions in the Federal Reporter, Federal Appendix, Westlaw, and LEXIS. [FN142] These table decisions, as noted earlier, did not contain any information about the legal dispute or the reasons for its resolution. [FN143] They merely provided the names of the parties, the docket number, the appellate court's disposition of the case, and the date. From a research perspective, the table decisions were useless because they contained no substantive law. In mid-2003, the Fifth Circuit made the full-text of its unpublished opinions more readily available. For the first time, the Fifth Circuit allowed West to publish the full-text of its unpublished opinions in the Federal Appendix and made them available online via the Fifth Circuit's website, Westlaw, and LEXIS. [FN144] Subsequently, in July 2004, the Fifth Circuit loaded approximately 27,000 older unpublished opinions, from 1992 to 2003, onto its website. Since that time, the Fifth Circuit's website has contained the largest collection of full-text Fifth Circuit unpublished opinions. *212 The website contains most of the Fifth Circuit's unpublished opinions issued from 1992 to the present. [FN145] It does not, however, contain any of the pre-1992 unpublished opinions, and there is no plan to place "electronic versions of unpublished cases issued prior to 1992 on the internet." [FN146] Surprisingly, Westlaw and LEXIS have even less coverage for Fifth Circuit unpublished opinions. Despite having the Fifth Circuit's permission to download all of the post-1992 unpublished opinions that are available on the Fifth Circuit's website, [FN147] Westlaw and LEXIS have failed to download these decisions onto their systems. Westlaw currently only has the full-text for Fifth Circuit unpublished opinions issued after July 2001, but intends to increase the number of older unpublished opinions. [FN148] LEXIS, by contrast, currently only has the full-text for Fifth Circuit unpublished opinions issued after 2003 and does not intend to increase the number of older unpublished opinions. [FN149] Table 3 tabulates the varying availability of full-text Fifth Circuit unpublished opinions: *213 Table #3:Where Are Full-Text Fifth Circuit Unpublished Opinions Available? Year Binding? Federal Federal Westlaw LEXIS Fifth Number ReporterAppendix Circuit of ...................... .........................WebsiteFifth ................ Circuit ........OpinionsFN [FN150] ........ 1974-1991 Yes No No No No No 11,046 ............................................................................................................................................................. 1992-1995 Yes No No NoFN No Yes9,535 [FN151] .......................................................................... ......................................................... ........ 1996-2000 No No No NoFN No Yes 12,040 [FN152] ............................................................................. ......................................................... ........ 2001 No No No Yes NoFN Yes7,233 - June [FN153] 2003 ......................................................................................... .................................. ........ ........ July No No Yes Yes Yes Yes 10,604 2003 - June ............................................................................................................................................ 2006 ........ This Table illustrates the challenge posed to attorneys who need to comprehensively research Fifth Circuit unpublished opinions. Most significantly, it is virtually impossible to comprehensively research binding Fifth Circuit unpublished opinions which, according to Fifth Circuit Rule 47, are those unpublished opinions issued prior to January 1, 1996. [FN154] Four conclusions must be highlighted: (1) The Fifth Circuit's website contains the most comprehensive coverage of full-text Fifth Circuit unpublished opinions. The Fifth Circuit's website contains the full-text for unpublished opinions issued from 1992 to present; Westlaw only contains the full-text for unpublished opinions issued since 2001; LEXIS and the Federal Appendix only contain the full-text for unpublished opinions issued since July 2003. (2) Fifth Circuit unpublished opinions issued prior to 1992, despite being fully precedential, are not readily available; they are not available via the Fifth Circuit website, they are not available via Westlaw, and they are not available via *214 LEXIS. [FN155] According to data from the Fifth Circuit Clerk, the Fifth Circuit issued at least 11,046 binding unpublished opinions prior to 1992. [FN156] Table #4: Fifth Circuit Unpublished Opinions Issued Prior to 1992--These Binding Opinions Are Not Readily Available Via Any Source Year Number of Unpublished Opinions ................. 1991 1726 ................. 1990 1574 ................. 1989 1354 ................. 1988 1367 ................. 1987 954 ................. 1986 845 ................. 1985 913 ................. 1984 927 ................. 1983 740 ................. 1982 646 ................. TOTAL 11,046 ................. Despite being fully precedential, these 11,046 Fifth Circuit unpublished opinions are virtually impossible to research. They are only readily available as table decisions which provide no substantive law to researching attorneys. Copies are available from the Fifth Circuit, but an attorney must know about the existence and significance of the case to request a copy. (3) Full-text Fifth Circuit unpublished opinions issued from 1992 until 1995, which are also fully precedential, are currently only readily available via the Fifth Circuit's relatively primitive website; they are not available via Westlaw or LEXIS. [FN157] According to data from the Fifth Circuit Clerk, *215 the Fifth Circuit issued 9,535 binding unpublished opinions during this time period (1992-1995). [FN158] Table #5: Fifth Circuit Unpublished Opinions Issued Between 1992 and 1995-- These Binding Opinions Are Only Available via the Fifth Circuit's Website Year Number of Unpublished Opinions .................... 1995 2826 ................. 1994 2463 ................. 1993 2319 ................. 1992 1927 ................. TOTAL 9535 ................. Despite being fully precedential, these 9,535 Fifth Circuit unpublished opinions are currently only readily available via the Fifth Circuit's relatively primitive website. (4) Full-text Fifth Circuit unpublished opinions issued from 1996 until 2000 are currently only readily available via the Fifth Circuit's website; they are not available via Westlaw or LEXIS. These unpublished opinions, unlike those issued prior to 1996, are not precedential. F. The Problem Faced by Fifth Circuit Attorneys: Unpublished Opinions Are Binding, But Not Readily Available Only one Fifth Circuit case, Pruitt v. Levi Strauss & Co., [FN159] has ever recognized the problems created by the Fifth Circuit rule that affords full precedential value to unpublished opinions even though those opinions are generally unavailable. In that case, the concurrence specifically referred to the complications caused by the Fifth Circuit's continued adherence to a rule that makes unpublished opinions fully precedential even though those unpublished opinions are "unavailable." [FN160] The attorney in that case was unaware of a 1989 binding unpublished Fifth Circuit opinion and therefore failed to pursue an alternative legal theory. [FN161] Although the court did not *216 address the attorney's failure to adjust his representation of the client based upon the binding, unpublished opinion, the case raises an interesting question: how can an attorney satisfy the ethical and legal duty to conduct competent legal research with respect to unpublished opinions when those opinions are not widely or readily available? IV. The Ethical & Legal Duty to Conduct Competent Research The prior two sections have shown that (1) an increasing number of jurisdictions currently allow citation of unpublished opinions, often for precedential value, and (2) many unpublished opinions are not as readily available as published opinions. This section will show that these new citation and precedent rules for unpublished opinions, coupled with lack of availability of those opinions, create a quandary for attorneys: ethical, procedural, and substantive rules create a duty to research and know the law, [FN162] but the problems encountered while researching unpublished opinions make it difficult, and sometimes impossible, to meet that duty. [FN163] Although the legal profession has not imposed a uniform code of professional conduct for all attorneys, several sources of law regulate the ethical and legal conduct of attorneys. These sources include ethical rules, procedural rules, and substantive law. [FN164] In 1908, the ABA first codified ethical rules, known as the Canons of Professional Ethics. [FN165] In 1969, after the ABA admitted that those Canons "failed to give adequate guidance, lacked coherence, omitted reference to important areas of practice, and did not lend themselves to meaningful disciplinary enforcement," the ABA issued the Model Code of Professional Responsibility. [FN166] The Model Code consisted of three parts: (1) Canons, which set forth broad general principles; (2) Ethical Considerations, which gave aspirational objectives for *217 every lawyer; and (3) Disciplinary Rules, which stated the "minimum level of conduct below which no lawyer [could] fall without being subject to disciplinary action." [FN167] The Model Code, however, was only marginally more successful than the original Canons. As a result, in 1983, spurred by criticism of the confusing tripartite structure of the Model Code, the ABA issued the Model Rules of Professional Conduct. [FN168] These Rules, which set forth mandatory conduct in the manner of a true code, have been adopted by a majority of the states. [FN169] Several of these Rules create a duty to research and know the law including, quite possibly, unpublished opinions. A. Model Rule 1.1: Competent Representation ABA Model Rule 1.1 mandates that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." [FN170] The legal knowledge required to satisfy this standard is both familiarity with well-settled principles of law and the ability to "discover those additional rules of law which, although not commonly known, may be readily found by standard research techniques." [FN171] In fact, even former Disciplinary Rule 6-101 stated that "a lawyer shall not . . . handle a legal matter without preparation adequate in the circumstances" [FN172] and "[a]dequate preparation included the duty to conduct legal research to discover rules of law that are not commonly known." [FN173] An attorney's failure to meet these minimum standards of professional conduct can lead to disciplinary action. [FN174] More specifically, an attorney's failure to research and use unpublished opinions "would arguably constitute an ethical violation by depriving the client of competent representation." [FN175] *218 B. Model Rule 3.3: Duty of Candor In addition to requiring knowledge of the law for competent representation, the ethical rules also impose a duty of candor on attorneys. [FN176] This duty of candor requires attorneys to research and disclose controlling authority, even if that authority is directly adverse to their clients' position. [FN177] This duty of candor would presumably apply to unpublished opinions, especially if these opinions are made binding by the court's rules. "In fact, in terms of the unpublished opinion, counsel's disclosure duty may be more significant precisely because opposing counsel does not have ready access to the unpublished opinion." [FN178] C. Federal Rule of Civil Procedure (FRCP) 11 & Federal Rule of Appellate Procedure (FRAP) 38 In addition to the rules of ethics, an attorney must abide by procedural rules that impose ethical responsibilities upon counsel. According to Rule 11 (of the FRCP), an attorney has a duty to refuse to sign and file any pleading, motion, or other paper that is not warranted by existing law (or by a good-faith argument for the extension, modification, or reversal of existing law). [FN179] Rule 11 instructs judges to use an objective standard and inquire what the lawyer should have known after conducting a reasonable inquiry into the law. [FN180] In addition to Rule 11 sanctions, Rule 38 of the FRAP has been used to sanction attorneys who file frivolous appeals by failing to disclose controlling adverse authority. [FN181] Similar to the ethical *219 rules, in order to avoid filing frivolous actions and appeals, these procedural rules would seem to require an attorney to comprehensively research binding unpublished opinions. D. Legal Malpractice In addition to these ethical and procedural rules, an attorney who fails to adequately research the law can also face civil liability for legal malpractice. It should be noted that a violation of the rules of professional ethics does not establish a prima facie case of legal malpractice. [FN182] The Model Rules specifically state that: violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached . . . . The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. [FN183] Despite this attempt to limit the use of the Model Rules as a basis for civil liability, an attorney's failure to meet these minimum ethical standards has been considered as evidence of malpractice. [FN184] In Michigan, for example, a violation of the Code of Professional Responsibility gives rise to a rebuttable presumption of actionable negligence. [FN185] Although few cases or commentators have ever suggested that an attorney might be subject to sanctions or malpractice for failing to research, cite, and discuss unpublished opinions, liability for such failure "may be just around the corner." [FN186] This seems especially likely if more unpublished opinions are made binding and such opinions are primarily accessible via computerized research. In fact, in one recent case, a court found *220 that an attorney's failure to consider citable, but non-precedential, unpublished opinions could be used to prove that an attorney breached his standard of care in a legal malpractice action. [FN187] In that case, the plaintiff-client sought to use expert testimony about unpublished opinions to establish the applicable standard of care and to establish that the attorney's conduct breached that standard. More specifically, the client sought to prove that the attorneys failed to act "with at least reasonable skill and learning" because the attorneys failed to consider unpublished opinions in advising the client. [FN188] The district court had prohibited the expert witnesses, who were other attorneys, from testifying about the law set forth in unpublished opinions, presumably because these unpublished opinions were not precedential under Minnesota law. [FN189] The Minnesota Court of Appeals reversed and found that, even though the applicable unpublished opinions were not precedential, the jury should have been allowed to hear how other attorneys used unpublished opinions to understand the law and trends in the law. [FN190] The court specifically ruled that "[t]he district court abused its discretion by refusing to allow [expert] witnesses to testify regarding how the unpublished opinions of this court affected their understanding of the merger doctrine," [FN191] the law in question in the malpractice action. Thus, the jury should have been allowed to hear from other attorneys, the expert witnesses, as to how attorneys use non-precedential, unpublished opinions to inform their understanding of the scope and trend of the law. [FN192] This decision, if adopted by other courts, has far ranging implications--it implies that an attorney has a legal duty to research unpublished opinions and that a breach of that duty may subject the attorney to a legal malpractice action. V. Recommendations for The Precedential Value of Unpublished Opinions This Article's main purpose is to warn courts and rules commissions about the dangers of making unpublished opinions precedential before those opinions are readily available. The technological revolution has indeed made unpublished opinions more readily available than ever before. On the federal level, the emergence of the Federal Appendix and the E-Government Act has, to some degree, blurred the differences between published and unpublished opinions. Despite these advances, *221 [u]npublished opinions are not as readily available as published opinions. Not all libraries and legal offices can afford to purchase West's Federal Appendix and rent space to store it. And not all lawyers can afford to use Westlaw or LEXIS. (Indeed, not all attorneys have access to computers.) The E-Government Act (which requires circuits to make all of their decisions-- published and unpublished--available on their websites) will help, but it will not level the playing field entirely. For example, the Act does not require circuits to provide electronic access to their old unpublished decisions, and it is unlikely that researching unpublished opinions on circuit websites will be as easy as researching those opinions on Westlaw or LEXIS. [FN193] The varying availability of Fifth Circuit unpublished opinions, as detailed in this Article, [FN194] demonstrates that unpublished opinions are not as readily available as published opinions. For example, the full-text for Fifth Circuit unpublished opinions issued prior to 1992, despite being fully binding law, can only be obtained by contacting the court and requesting a copy. The full-text for Fifth Circuit unpublished opinions issued from 1992 through 1995, which are also fully binding law, are available only from the Fifth Circuit's website, not from Westlaw or LEXIS. Thus, attorneys cannot readily access over 20,000 binding unpublished opinions (11,046 opinions issued prior to 1992, and 9,535 opinions issued from 1992 through 1995). [FN195] These 20,581 binding unpublished opinions are not all routine, ordinary, and meaningless opinions. [FN196] In addition to these binding unpublished opinions, the full-text for Fifth Circuit unpublished opinions issued from 1996 through 2000, though non-binding, are also available only from the Fifth Circuit's website. By contrast, the full-text for Fifth Circuit opinions issued from 2001 through June 2003 are available from the Fifth Circuit's website and Westlaw, but not LEXIS. Finally, the full-text for Fifth Circuit unpublished opinions issued since July 2003 are available from the Fifth Circuit's website, Westlaw, LEXIS, and the Federal Appendix. This Fifth Circuit example shows the perils of making unpublished opinions precedential; their varied availability makes it virtually impossible for even a highly competent attorney to comprehensively research these opinions. The unpublished opinions are located in various electronic databases (the court's website, Westlaw, and LEXIS), and some opinions are only available from the court's filing cabinets or from an organization *222 that has collected these opinions. Despite this availability problem, the Fifth Circuit has made some of these difficult to research unpublished opinions binding. By doing so, attorneys face an impossible problem: they have a duty to research and know the law, including presumably binding unpublished opinions, but these opinions are virtually impossible to research in a comprehensive fashion. To rectify this problem, the Fifth Circuit should either change Rule 47 and relegate these difficult to research unpublished opinions to a non-precedential status, or make these opinions readily available. [FN197] Attorneys should not have a duty to research binding unpublished opinions that are not readily available. Although this Article highlights the problem faced by attorneys researching Fifth Circuit unpublished opinions, similar problems exist in other jurisdictions. The availability of unpublished opinions varies from federal circuit to federal circuit. [FN198] The availability of unpublished state opinions is even more sporadic and uneven, as there is no state equivalent for either the E-Government Act or the Federal Appendix. [FN199] As one commentator recently noted, "at the state court level, progress toward making non-precedential appellate court rulings more readily available has varied from slow to non-existent." [FN200] Surprisingly, courts and commentators have seemingly ignored this availability problem when deciding about the citation to and, more importantly, precedential value of unpublished opinions. Even influential members of the judiciary who have studied this issue, such as Justice Alito, have mistakenly assumed that technology has cured the availability problem. [FN201] Before accepting the assumption that technology has made both older and newer unpublished opinions readily available to all attorneys, rules commissions and courts must carefully scrutinize the availability of these opinions and only make these opinions precedential when they are truly readily available. [FN202] Any other approach will subject an attorney's clients to unfairness, based on whether the attorney has access to these unpublished *223 opinions via Westlaw, LEXIS, or another database. It may also unnecessarily subject attorneys to ethical and legal malpractice claims. This is an important issue for both federal and state courts. Federal courts must implement FRAP 32.1 and state courts are addressing the precedential value of unpublished opinions with increasing frequency. [FNa1]. Assistant Professor of Law, South Texas College of Law. B.A., University of Michigan; J.D., Boston University School of Law. I would like to thank all of my colleagues at South Texas College of Law, especially Professor Maxine Goodman, Professor Rob Holland, and Professor Brady Coleman. I would also like to thank the Association of Legal Writing Directors (ALWD) for providing a scholarship grant and my research assistants, Andy Kantor, Elan Levy, Mary Sawyer, Veronica Skerhut, and Anahita Nariman, for their patience and help. And, of course, a special thanks to Mary Ann, Samantha, and Alexander. [FN1]. The Article does not take a position on whether readily available unpublished opinions should be precedential. The Article merely cautions against making unpublished opinions precedential prior to those opinions becoming readily available. [FN2]. More specifically, the Fifth Circuit should not afford full precedential value to unpublished opinions issued prior to January 1, 1996 because many of these unpublished opinions are difficult to research. See infra notes 95-102 and accompanying text (explaining the Fifth Circuit's rule on unpublished opinions). [FN3]. Michael Hannon, A Closer Look at Unpublished Opinions in the United States Courts of Appeals, 3 J. App. Prac. & Process 199, 207-08 (2001) (tracing the historical evolution of unpublished opinions in the federal appellate court rules). [FN4]. The most significant change is the new federal rule of appellate procedure that allows citation of federal court of appeals unpublished opinions issued after January 1, 2007. See Fed R. App. P. 32.1; see also infra notes 80-85 and accompanying text (explaining the new federal rule in greater detail). [FN5]. See Fifth Cir. R. App. P. 47.5.3 ("Unpublished opinions issued before January 1, 1996 are precedent."); D.C. Cir. R. 28(c)(1)(b) ( "Unpublished dispositions of the court entered on or after January 1, 2002, may be cited as precedent."); Grand County v. Rogers, 44 P.3d 734, 738 (Utah 2002) (holding that an unpublished Utah Supreme Court opinion "may be presented as precedential authority to a lower court"). [FN6]. See Law Review Articles Relating to Nonpublication, http:// www.nonpublication.com/ARTICLES.HTML (last visited June 7, 2007) (listing 102 law review articles that have addressed the role that unpublished opinions should play in our legal system). [FN7]. Fifth Cir. R. App. P. 47 (allowing citation of unpublished opinions); see also infra notes 95-102 and accompanying text (explaining the Fifth Circuit's rule regarding citation of unpublished opinions in greater detail). [FN8]. Fifth Cir. R. App. P. 47. [FN9]. On December 17, 2004, the E-Government Act of 2002 began requiring all federal circuits to electronically publish, on their respective websites, every written opinion issued after the effective date of the Act, whether or not the court designated the decision for publication in the official reporter. E-Government Act of 2002, Pub. L. No. 107-347, s 205(a)(5), 116 Stat. 2899, 2913 (codified at 44 U.S.C. s 3501(2002)). [FN10]. E. Bliss & E. White, The Common Law, 10 N. Am. Rev. 411, 433 (1824), quoted in J. Myron Jacobstein, Some Reflections on the Control of the Publication of Appellate Court Opinions, 27 Stan. L. Rev. 791, 791 (1975) (recognizing that the sheer number of case reports is "becoming an evil" and "very few of the profession can afford to purchase, and none can read all the books which it is thought desirable, if not necessary to possess"); see also John B. Winslow, The Court and the Papermills, 10 U. Ill. L. Rev. 157, 158 (1915); Edward H. Warren, The Welter of Decisions, 10 U. Ill. L. Rev. 472, 472 (1916) (discussing the explosion in case decisions). [FN11]. David Greenwald & Frederick A. O. Schwartz, Jr., The Censorial Judiciary, U.C. Davis L. Rev. 1133, 1141-42 (2002) (citing Reports of the Proceedings of the Judicial Conference of the U. S.: Annual Report of the Director of the Administrative Office of the United States Courts 11 (1964) (discussing the problems related to the ability of courts to function with an increased workload) [hereinafter Judicial Conference Proceedings]. [FN12]. In 1930, the number of federal appeals was 2,974. Admin. Off. U.S. Courts, Workload Statistics for the Decade of the 1970's ii (1980). For the twelve-month period ending September 30, 2006, the number of federal appeals was 66,618. Statistics Div., Admin. Off. U.S. Cts., Judicial Business of the United States Courts: 2006 Annual Report of the Director 138 tbl. B-6 (2006), available at http://www.uscourts.gov/judbus2006/appendices/b6.pdf. [FN13]. Charles W. Joiner, Limiting Publication of Judicial Opinions, 56 Judicature 195, 195 (1972). [FN14]. Francis P. Whitehair, Opinions of Courts: Fifth Circuit Acts against Unneeded Publication, 33 A.B.A. J. 751 (1947); Francis P. Whitehair, Opinions of Courts: Should Number Published Be Reduced?, 34 A.B.A. J. 668 (1948) (discussing a committee report to the Third and Fifth Circuits recommending a reduction in the number of published opinions). [FN15]. Donald R. Songer, Criteria For Publication of Opinions in the U.S. Courts of Appeals: Formal Rules v. Empirical Reality, 73 Judicature 307, 308 (1990) (noting that "[i]t is not known how many decisions of the courts of appeals were not published before 1964, but apparently the number was relatively small."). [FN16]. The Judicial Conference of the United States, which was established by Congress, was charged with carrying "on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States as pursuant to law." 28 U.S.C.A. s 331 (2006). See J. Lyn Entrikin Goering, Legal Fiction of the "Unpublished" Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor, 1 Seton Hall Cir. Rev. 27, 37 n.36 (2005) (discussing the establishment of the Judicial Conference). [FN17]. Judicial Conference Proceedings, supra note 11, at 11. [FN18]. Songer, supra note 15, at 308 (noting that, during the late 1960's, the status quo remained and many circuits continued to publish most of its opinions). [FN19]. Comm. On rules of Practice and Procedure, Report of the Judicial Conference Committee to the Chief Justice of the United States and Members of the Judicial Conference of the United States 8 (September 2004), available at http://www.uscourts.gov/rules/jc09-2004/JCReport.pdf (last visited June. 7, 2007) (discussing the 1974 Judicial Conference report and action). [FN20]. The Advisory Council on Appellate Justice was a group of lawyers, law professors, and judges brought together by the Federal Judicial Center for the purpose of performing an in-depth study of the state and federal appellate justice systems. Joseph L. Gerken, A Librarian's Guide to Unpublished Judicial Opinions, 96 Law Libr. J. 475, 477-78 (2004). [FN21]. In deciding whether to publish a decision, the Council proposed that judges should consider four factors: (1) whether the decision created a new rule of law or altered an existing one; (2) whether the decision involved a legal issue of continuing public interest; (3) whether the decision criticized existing law; or (4) whether the decision resolved an apparent conflict of authority. Comm. on Use of Appellate Court Energies, Advisory Council on Appellate Justice, Standards For Publication of Judicial Opinions 3, 15-17 (1973) [hereinafter standards for publication of judicial opinions]. [FN22]. William L. Reynolds & William M. Richman, The Non-Precedential Precedent --Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167, 1182 (1978) (explaining the two distinct functions of appellate decision-making); Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 224 (2006) (acknowledging that only law-making, not dispute-settling, appellate decisions should be precedential); see also Philip Nichols Jr., Selective Publication of Opinions: One Judge's View, 35 Am. U. L. Rev. 909, 922 (1986) ("Despite differences in the way different circuits state[d] their plans, I think it probable that a like case would probably be published, or not published, similarly in all circuits."). [FN23]. The Non-Precedential Precedent, supra note 22, at 1182-83; William L. Reynolds & William M. Richman, Limited Publication in the Fourth and Sixth Circuits, 1979 Duke L.J. 807, 808 (1979); William L. Reynolds & William M. Richman, Appellate Justice Bureaucracy and Scholarship, 21 U. Mich. J.L. Reform 623, 632-33 (1989). [FN24]. Charles E. Carpenter, Jr., The No-Citation Rule for Unpublished Opinions: Do The Ends of Expediency for Overloaded Appellate Courts Justify The Means of Secrecy?, 50 S.C. L. Rev. 235, 249 (1999) (explaining the judicial efficiency and cost benefits of selective publication and no citation rules). [FN25]. Limited Publication in the Fourth and Sixth Circuits, supra note 23, at 808; The Non-Precedential Precedent, supra note 22, at 1182-83; Appellate Justice Bureaucracy and Scholarship, supra note 23, at 632-33. [FN26]. William R. Mills, The Shape of the Universe: The Impact of Unpublished Opinions on the Process of Legal Research, 46 N.Y.L. Sch. L. Rev. 429, 434 (2003); see also Richard A. Posner, The Federal Courts: Crisis and Reform 121-22 (1985) (noting that only opinions that overtly make law are worthy of publication). [FN27]. Carpenter, supra note 24, at 249 (addressing some of the benefits of selective publication and no citation rules). [FN28]. In addition to recommending criteria for selective publication, the Advisory Council for Appellate Justice proposed rules for forbidding citation of unpublished opinions in order to promote the primary purpose for selective publication, namely judicial economy. Standards For Publication of Judicial Opinions, supra note 21, at 18-21. [FN29]. Robert Timothy Reagan, Citing Unpublished Opinions in Federal Appeals (Fed. Judicial Ctr. 2005), available at http:// www.fjc.gov/public/pdf.nsf/lookup/citatio3.pdf/$file/citatio3.pdf (noting that seven circuits prohibited citation of unpublished opinions, one circuit discouraged citation of unpublished opinions, and three circuits permitted citation of unpublished opinions, including the Fifth Circuit which originally allowed unpublished opinions to be cited as binding authority); see also The Non-Precedential Precedent, supra note 22, at 1180-81 (setting forth the citation rules originally adopted by the circuits and noting that most of these rules only allowed citation of unpublished opinions for the purposes of res judicata, collateral estoppel, or the law of the case). [FN30]. Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 193 (1999) (expressing adamant opposition to the citation of unpublished opinions). [FN31]. Id. at 196 (quoted in Hart v. Massinari, 266 F.3d 1155, 1178 n.36 (9th Cir. 2001)). [FN32]. The Non-Precedential Precedent, supra note 22, at 1185 (noting that allowing citation would frustrate the purpose of unpublished opinions). [FN33]. Carpenter, supra note 24, at 242. [FN34]. David S. Caudill, Parades of Horribles, Circles of Hell: Ethical Dimensions of the Publication Controversy, 62 Wash. & Lee L. Rev. 1653, 1659 (2005) (discussing the increased cost of researching unpublished opinions). [FN35]. Michael B.W. Sinclair, Anastasoff versus Hart: The Constitutionality and Wisdom of Denying Precedential Authority to Circuit Court Decisions, 64 U. Pitt. L. Rev. 695, 699 (2003). [FN36]. Williams v. Dallas Area Rapid Transit (DART), 256 F.3d 260, 261 (5th Cir. 2001) (Smith, J, dissenting from denial of reh'g en banc). [FN37]. In 1981, the federal appellate courts issued 11.2% of their decisions as unpublished opinions. The unpublished rates varied from a low of 3.7 % unpublished in the Seventh Circuit to a high of 24 % unpublished in the Eighth Circuit. Hannon, supra note 3, at 204 tbl. 2. [FN38]. In 1985, the federal appellate courts issued 59.4% of their decisions as unpublished opinions. The unpublished rates varied from a low of 40.7 % unpublished in the First Circuit to a high of 77.9 % in the Fourth Circuit. Id. [FN39]. In 2006, the federal courts of appeals issued 84% of their decisions as unpublished opinions. The unpublished rates varied from a low of 59.9 % unpublished in the D.C. Circuit to a high of 93.7 % in the Fourth Circuit. Judicial Business of the United States Courts: 2006 Annual Report of the Director tbl. S-3, available at http:// www.uscourts.gov/judbus2006/tables/s3.pdf. [FN40]. Hannon, supra note 3, at 204. [FN41]. Id. [FN42]. Judicial Business of the United States Courts: 1990 Annual Report of the Director tbl. S-3, available at http:// www.uscourts.gov/judbus1990/tables/s3.pdf. [FN43]. Judicial Business of the United States Courts: 1995 Annual Report of the Director tbl. S-3, available at http:// www.uscourts.gov/judbus1995/tables/s3.pdf. [FN44]. Judicial Business of the United States Courts: 2000 Annual Report of the Director tbl. S-3, available at http:// www.uscourts.gov/judbus2000/tables/s03sep00.pdf. [FN45]. Judicial Business of the United States Courts: 2005 Annual Report of the Director tbl. S-3, available at http:// www.uscourts.gov/judbus2005/tables/s3.pdf. In 2006, 84.1% of federal court of appeals decisions were unpublished. Judicial Business of the United States Courts: 2006 Annual Report of the Director tbl. S-3, available at http:// www.uscourts.gov/judbus2006/tables/s3.pdf. [FN46]. Actually, a few scholars started to criticize the practice of issuing non-precedential unpublished opinions shortly after the practice began. See The Non-Precedential Precedent, supra note 22, at 1189-1206 (1978). Despite these initial objections, the enormous current debate over unpublished opinions occurred after the Eighth Circuit's decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot, 235 F.3d 1054 (2000) (en banc); see also infra notes 66-73 and accompanying text (discussing Anastasoff and the firestorm of controversy over unpublished opinions). [FN47]. Robert Martineau, Restrictions on the Publication and Citation of Judicial Opinions: A Reassessment, 28 Mich J.L. Reform 119, 134 (1994) (noting that "an unpublished, uncitable decision cannot fit with the definition of stare decisis"); Sarah E. Ricks, supra note 22 (addressing the doctrinal inconsistencies created by non-precedential, unpublished opinions); Bradley Scott Shannon, May Stare Decisis Be Abrogate by Rule?, 67 Ohio St. L.J. 645, 649 (2006) (noting that non-precedential unpublished opinions abrogates stare decisis); Marla Brooke Tusk, Note, No Citation Rules as a Prior Restraint on Speech, 103 Colum. L. Rev. 1202, 1207 (2003) (noting that "no-citation rules have effectively taken unpublished opinions outside the realm of stare decisis...[and] these rules explicitly strip unpublished opinions of any binding precedential force"); Drew R. Quitschau, Note, Anastasoff v. United States: Uncertainty in the Eighth Circuit --Is there a Constitutional Right to Cite Unpublished Opinions?, 54 ARK. L. REV. 847, 878 (2002) ("[T]he no-citation rule violates stare decisis .... Our forefathers never intended the courts to have such unbridled discretion ... as prescribed by the no-citation rule."). [FN48]. See infra notes 107-111 and accompanying text (noting that unpublished opinions were not really "secret" just difficult to readily research). [FN49]. Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals, 54 Vand. L. Rev. 71, 120 (2001). [FN50]. One commentator has noted that the criteria governing publication should ensure that reversals rarely occur in unpublished decisions because a reversal provides an "objective indicator that ... the law [wa]s in need of clarification." Songer, supra note 15, at 311. [FN51]. When courts first started to issue unpublished opinions, the vast majority of unpublished opinions were affirmances, and reversals were almost always published. More recently, however, courts have increasingly issued reversals in unpublished opinions. David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. Cin. L. Rev. 817, 826 (2005) (detailing the trend toward more reversals in unpublished opinions). [FN52]. Hannon, supra note 3, at 215-16. [FN53]. William L. Reynolds & William M. Richman, Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U Chi. L. Rev. 573, 612 (1981). [FN54]. Hannon, supra note 3, at 222; see also Brian P. Brooks, Publishing Unpublished Decisions: A Review of the Federal Appendix, 5 Green bag 259, 261-63 (2002). [FN55]. 434 U.S. 257 (1978). [FN56]. Brief of Petitioner at 50-56, Browder, 434 U.S. 257 (No. 76-5325) (June 9, 1977), available at 1977 WL 189276. [FN57]. Brief Amicus Curiae of Chicago Council of Lawyers at 30-58, Browder, 434 U.S. 257 (No. 76-5325) (May 27, 1977), available at 1977 WL 189280. [FN58]. Browder, 434 U.S. at 258 n.1. [FN59]. E.g. United States v. Edge Broad. Co., 509 U.S. 418, 425 n.3 (1995); Taylor v. McKeither, 407 U.S. 191, 194 n.4 (1972); Terrell v. Morris, 493 U.S. 1, 3 (1989); County of L.A. v. Kling, 474 U.S. 936, 938 (1985) (Marshall, J, dissenting). [FN60]. Edge Broad. Co., 509 U.S. at 425 n.3. [FN61]. Commr. v. McCoy, 484 U.S. 3, 7 (1987) (per curiam) ("The fact that the Court of Appeal's order under challenge here is unpublished carries no weight in our decision to review the case."). [FN62]. Gerken, supra note 20, at 486; see also Johnson v. United States, 529 U.S. 694, 699 n. 3 (2000) (documenting the split among the circuits by citing an unpublished First Circuit opinion). [FN63]. Gerken, supra note 20, at 486; see also E. Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 61 (2000); Lynce v. Mathis, 519 U.S. 433, 436 (1997); Old Chief v. United States, 519 U.S. 172 (1997); Thompson v. Keohane, 516 U.S. 99, 106 (1995); Harris v. Forklift Sys., Inc., 510 U.S. 17, 20 (1993); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 452-54 (1993). [FN64]. Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 226 (1999). [FN65]. Alex Kozinski & Stephen Reinhardt, Please Don't Cite This!, Cal. Law. 43 (June 2000) (advocating for the continued use of no citation rules). [FN66]. Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot, 235 F.3d 1054 (2000) (en banc). [FN67]. Id. [FN68]. Id. at 905. [FN69]. Id. [FN70]. Id. at 900. [FN71]. Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000) (en banc). [FN72]. Mills, supra note 26, at 437. [FN73]. One year later, the Ninth Circuit disagreed with the original Anastasoff decision and upheld the constitutionality of its no-citation rule. Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001). Almost as if responding to Judge Arnold's decision in Anastasoff, the Ninth Circuit, in an opinion written by Judge Kozinski, upheld the use of no citation rules for unpublished opinions and flatly rejected the argument that such rules violated Article III of the United States Constitution. Shortly after the Hart decision, Judge Smith of the Fifth Circuit focused on the practical problem created by unpublished opinions. In a prior unpublished opinion from 1999, the Fifth Circuit had held that the Dallas Area Rapid Transit (DART) was "a political subdivision of the state of Texas and [wa]s therefore immune from suit under the Eleventh Amendment." Williams v. DART, 256 F.3d 260, 260 (5th Cir. 2001) (Smith, Jones, & Demoss, JJJ., dissenting from denial of rehearing en banc) (referring to Anderson v. DART, 180 F.3d 265 (5th Cir. 1999) (per curiam) (unpublished) (table)). Two years later, the identical issue arose and the Fifth Circuit ignored the unpublished decision and denied immunity to DART. Williams v. DART, 242 F.3d 315, 319 (5th Cir. 2001). In a particularly telling passage, several members of the Fifth Circuit wondered: What is the hapless litigant or attorney, or for that matter a federal district judge or magistrate judge, to do? The reader should put himself or herself into the shoes of the attorney for DART. That client is told in May 1999, by a panel of this court in Anderson, that it is immune, on the basis of a "comprehensive and well-reasoned opinion." Competent counsel reasonably would have concluded, and advised his or her client, that it could count on Eleventh Amendment immunity. Williams, 256 F.3d at 261. [FN74]. Despite the growing criticism of no-citation rules, several federal appellate judges still support the use of unpublished, non-precedential opinions. E.g. Philip Nichols Jr., Selective Publication of Opinions: One Judge's View, 35 Am. U. L. Rev. 909 (1986); Edith H. Jones, Back to the Future for Federal Appeals Courts: Rationing Federal Justice by Recovering Limited Jurisdiction, 73 Tex. L. Rev. 1485, 1494-95 (1995); Diane Gribbon Motz, A Federal Judge's View of Richard A. Posner's "The Federal Courts: Challenge and Reform," 73 Notre Dame L. Rev. 1029, 1037-38 (1998); Martin, Jr., supra note 30; Kozinski and Reinhardt, supra note 65. [FN75]. Stephen R. Barnett, No Citation Rules Under Siege: A Battlefield Report and Analysis, 5 J. App. Prac. & Process 473, 490 (2003) (noting that the First, Third, Fifth, Sixth, Eighth, Tenth, Eleventh, and D.C. Circuits then allowed the citation of unpublished opinions); see also Melissa M. Serfass and Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions: An Update, 6 J. App. Prac. & Process 349, 351-57 tbl. 1 (2004) (setting forth then-existing circuit rules regarding publication and citation standards). [FN76]. Serfass and Cranford, supra note 75, at 351-57 tbl. 1 (showing that the First, Eighth, Tenth, and Eleventh Circuits allow the citation of unpublished opinions for "persuasive" value); 1st Cir. R. 32.3 ("Unpublished opinions are considered only for their persuasive value."); 8th Cir. R. 28A ("Parties may ... cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no unpublished opinion of this or another court would serve as well."); 10th Cir. R. 36.3 ("Unpublished orders and judgments are not binding precedents.... an unpublished decision may be cited if it has persuasive value regarding a material issue not addressed in a published opinion and its use would assist the court in its disposition of the present case."); 11th Cir. R. 36-2 ("Unpublished opinions are not considered binding precedent; however, they may be cited as persuasive authority."). In addition to those four circuits, the Fourth and Sixth Circuits allow citation of unpublished opinions and binding case law makes it clear that such opinions are not binding. Cantor v. Cohen, 442 F.3d 196, 205 (4th Cir. 2006) (making it clear that unpublished Fourth Circuit opinions are not binding); United States v. Denton, 246 F.3d 784, 790 (6th Cir. 2001) (making it clear that Sixth Circuit unpublished opinions are not binding). Interestingly, these two circuits have been counted as permitting citation of unpublished opinions as precedent, despite case law clearly indicating otherwise. See Serfass and Cranford, supra note 75, at 351-57 tbl. 1 (counting the Fourth and Sixth Circuits as allowing the citation of unpublished opinions for "precedential" value). [FN77]. Only the Fifth and D.C. Circuits allow unpublished opinions to be cited as binding law. 5th Cir. R. 47.5.3 ("Unpublished opinions issued before January 1, 1996, are precedent."); D.C. Cir. R. 28(c)(1)(b) ("Unpublished dispositions of the court entered on or after January 1, 2002, may be cited as precedent.") [FN78]. Barnett, supra note 75, at 474 n. 8 ("Notwithstanding Third Circuit Appellate Rule 1, I.O.P. 5.7 ("The court by tradition does not cite to its not precedential opinions as authority"), and the Third Circuit Press Release of December 5, 2001 ("the court will not cite to non-precedential opinions as authority") (emphasis in original), attorneys in the Third Circuit may and do cite to unpublished opinions. Telephone Interview with Trish Dodszuweit, Leg. Coord., 3d Cir. (Oct. 30, 2003)"). [FN79]. The Second, Seventh, Ninth, and Federal Circuits. [FN80]. Patrick J. Schlitz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23, 28-29 (2005) (detailing the years of debate over a national rule governing the citation of unpublished opinions). [FN81]. Fed R. App. P. 32.1. The text of the rule reads as follows: 32.1. Citing Judicial Dispositions (a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007. (b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited. [FN82]. Memorandum from Judge Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules, to Judge David F. Levi, Chair, Standing Comm. on Rules of Practice & Procedure, Report of Advisory Comm. on Appellate Rules (May 6, 2005), available at http://www.uscourts.gov/rules/Reports/AP5-2005.pdf. [FN83]. The Federal Rules of Appellate Procedure (FRAP) govern procedure in the United States Courts of Appeals, but do not govern proceedings in federal district courts. [FN84]. The four federal circuits that prohibited citation of unpublished opinions have recently revised their circuit rules to comply with FRAP 32.1. In each circuit, the court now permits citation of unpublished opinions issued after January 1, 2007 and prohibits citation of unpublished opinions issued prior to January 1, 2007. All unpublished opinions, regardless of the date of issuance, remain non-precedential. Fed Cir. R. 32.1; Second Cir. R. 0.23; Seventh Cir. R. 32.1; Ninth Cir. R. 36-3. [FN85]. Prior to FRAP 32.1, nine circuits (the First, Third, Fourth, Fifth, Sixth, Eighth, Tenth, Eleventh, and D.C. Circuits) permitted citation of unpublished opinions. Each of these circuits has either recently adopted or proposed to adopt new local rules that reference and comply with FRAP 32.1. None of these new local rules substantially alter the prior circuit practices with respect to the citation or precedential value of unpublished opinions. [FN86]. Barnett, supra note 75, at 484-486. [FN87]. In re Amendment of Section (Rule) 809.23(3), Stats., 456 N.W.2d 783, 783 (Wis. 1990). [FN88]. Id. [FN89]. Id. at 784. [FN90]. These states include Alaska, Georgia, Iowa, Kansas, Michigan, Minnesota, New Jersey, New Mexico, Tennessee, Vermont, Virginia, and Wyoming. Barnett, supra note 75, at 499. [FN91]. McCoy v. State, 80 P.3d 757, 763 (Alaska Ct. App. 2003) (allowing the citation of unpublished opinions for persuasive value even though the Alaska rule stated that "summary decisions under this rule are without precedential effect and may not be cited in the courts of this state"); Alaska R. App. P. 214(d). [FN92]. Barnett, supra note 75, at 481(noting that Delaware, Ohio, Texas, Utah, and West Virginia allow citation of unpublished opinions as precedent); see also Melissa M. Serfass & Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions: An Update, 6 J. App. Prac. & Process 349, 349 (2005). This survey, which updates their 2001 survey, shows that eight states have recently liberalized its rules to permit attorneys to cite unpublished opinions, as either precedential or persuasive authority. Melissa M. Serfass & Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions, 3 J. App. Prac. & Process 251 (2001). [FN93]. The Utah Supreme Court, in Grand County v. Rogers, 44 P.3d 734, 738 (Utah 2002), specifically noted following: We also take this opportunity to correct the misimpression that the Judicial Council has authority to adopt rules governing the use of memorandum decisions in the appellate process. This responsibility and authority has been specifically reserved to the supreme court in the constitution. Utah Const. art. VIII, s 4. Unless and until this court adopts a rule to the contrary, it is appropriately within the discretion of the court of appeals to determine which matters require oral argument, which decisions require a full opinion, and which do not. It is not, however, within their authority, or the authority of the Judicial Council, to decide which of their decisions may be cited as precedent. The work of judges, the product being decisions and opinions issued to the parties, bar, and public, is the very fabric of the common law. When judges speak on issues of law, that expression becomes part of the law until it is authoritatively revised. When the court of appeals renders a decision on an issue, that decision is automatically part of the law of this state, unless and until contravened by this court, the legislature, or the people through the processes authorized for the making of new law. For this reason, decisions of the court of appeals expressed in a memorandum decision, or in an opinion, are equally binding upon lower courts of this state, and may be cited to the degree that they are useful, authoritatively and persuasively. Such decisions are issued and distributed as are all other opinions, except for the fact that they are not published in the Utah Advance Reports or the West reporter system. They are generally available to the bar and public through the internet service provided by the Administrative Office of the Courts, and although not "officially published," may be presented as precedential authority to a lower court or as persuasive authority to this court, so long as all parties and the court are supplied with accurate copies at the time the decision is first cited. [FN94]. Ohio Sup. Ct. R. 4. [FN95]. Fifth Cir. R. 47.5.4 specifically states: 47.5.4 Unpublished Opinions Issued on or After January 1, 1996. Unpublished opinions issued on or after January 1, 1996, are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, abuse of the writ, notice, sanctionable conduct, entitlement to attorney's fees, or the like). An unpublished opinion may, however, be persuasive. An unpublished opinion may be cited, but if cited in any document being submitted to the court, a copy of the unpublished opinion must be attached to each document. The first page of each unpublished opinion bears the following legend: Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Thus, the Fifth Circuit's rule grants precedential status to these post-1996 unpublished opinions only for the purposes of "res judicata, collateral estoppel, or law of the case (or similarly to show double jeopardy, abuse of writ, notice, sanctionable conduct, entitlement to attorney's fees, or the like)." [FN96]. Fifth Cir. R. 47.5.3 specifically states: 47.5.3 Unpublished Opinions Issued Before January 1, 1996. Unpublished opinions issued before January 1, 1996, are precedent. However, because every opinion believed to have precedential value is published, such an unpublished opinion should normally be cited only when the doctrine of res judicata, collateral estoppel or law of the case is applicable (or similarly to show double jeopardy, abuse of the writ, notice, sanctionable conduct, entitlement to attorney's fees, or the like). A copy of any unpublished opinion cited in any document being submitted to the court, must be attached to each copy of the document. See Abrams Shell v. Shell Oil Co., 343 F.3d 482, 487 n.11 (5th Cir. 2003) (noting that "5th Cir. R. 47.5.3 became effective on October 17, 1995"). Prior to the change to Fifth Circuit Rule 47.5.3, unpublished opinions were precedential but could only be cited when: "1) it establishes the law of the case, 2) is relied upon as a basis for res judicata or collateral estoppel, or 3) involves related facts." United States v. Murray, 988 F.2d 518, 523 n.3 (5th Cir. 1993). Interestingly, the older version of Fifth Circuit Rule 47, ordered the court to use unpublished opinions if the decisions had "no precedential value." Despite being issued as unpublished because these opinions lacked precedential value, Rule 47.5.3 allowed citation of these opinions as precedent. United States v. Melancon, 972 F.2d 566, 570 (5th Cir. 1992) (Parker, J., concurring) and Soc'y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1212 n.16 (5th Cir. 1991). [FN97]. Fifth Cir. R. 47.5.3. [FN98]. Weaver v. Ingalls Shipbuilding, Inc., 282 F.3d 357, 359 n.3 (5th Cir. 2002) (emphasis in original). [FN99]. This one case limits the precedential value of these opinions to res judicata, collateral estoppel, and the other exceptions in the rule. Arnold v. U.S. Dep't of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000) (The court specifically noted that "pursuant to Local Rule 47.5.3, '[u]npublished opinions issued before January 1, 1996 .... should normally be cited only when the doctrine of res judicata, collateral estoppel or law of the case is applicable.' None of those doctrines is relevant here."). In every other Fifth Circuit case that references this rule, the courts treat the pre-1996 unpublished decisions as precedential. See e.g., Brown v. Cain, 104 F.3d 744, 753 (5th Cir. 1997) (recognizing that pre-1996 unpublished decisions are binding); United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996). These decisions, which treat the pre-1996 unpublished decisions as precedential, would control this issue because the earliest decision controls when Fifth Circuit decisions conflict; see also Sw. Bell Tel. Co. v. El Paso County Water Improvement Dist. No. 1, 243 F.3d 936, 940 (5th Cir. 2001) (noting that Fifth Circuit conflicts are resolved by following the earliest decision). [FN100]. Weaver, 282 F.3d at 359 n.3 (5th Cir. 2002). [FN101]. Stephen R. Barnett, From Anastasoff to Hart to West's Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 J. App. Prac. & Process 1, 4 (2004) (noting that both the Fifth and Eleventh Circuit fail to provide West or LEXIS with their unpublished opinions, yet allow citation of those opinions). [FN102]. Barnett, supra note 75, at 481 (showing that Delaware, Ohio, Texas, Utah, West Virginia, and the D.C. and Fifth Circuits allow citation of unpublished opinions as precedent); see also supra notes 77, 92-94, 96 and accompanying text (detailing the jurisdictions that allow citation of unpublished opinions as binding authority). [FN103]. "[T]he spread of computerized legal research has meant that 'unpublished' opinions generally are as readily available as those designated as 'published."' 44 Unpublished Judicial Opinions: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Prop. of the House Comm. on the Judiciary, 107th Cong., 2d Sess. (2002) [hereinafter Unpublished Judicial Opinions], available at http://judiciary.house.gov/legacy/80454.PDF (last visited November. 7, 2006) (prepared statement of Professor Arthur D. Hellman); see also Schlitz, supra note 80, at 78 (noting that "[i]n almost all of the circuits, "unpublished" opinions are as readily available as "published" opinions [and] [b]arring citation of "unpublished" opinions is no longer necessary to level the playing field."); J. Thomas Sullivan, Unpublished Opinions and No Citation Rules in Trial Courts, 47 Ariz. L. Rev. 419, 419 (2005) (Sullivan explained that unpublished opinions "are often readily available through online databases, such as judicial websites, private providers such as Westlaw and LEXIS, and public alternatives such as Findlaw."). [FN104]. Patrick J. Schlitz, supra note 80, 78 (Schlitz explained that, "[i]n the past, some have also argued that, without no-citation rules, large institutional litigants (such as the Department of Justice) who can afford to collect and organize 'unpublished' opinions would have an unfair advantage. Whatever force this argument may once have had, that force has been greatly diminished by the widespread availability of 'unpublished' opinions on Westlaw and LEXIS, on free Internet sites, and now in the Federal Appendix."). [FN105]. One of the original justifications for prohibiting citation was the unfairness created by the limited availability and uneven access to unpublished opinions. If courts allowed citation of unpublished opinions, organizations that could afford to bank or gain electronic access to unpublished opinions would have gained an unfair advantage over attorneys or organizations without such access. As Samuel Alito recently noted, no-citation rules were thought to promote fairness and "dispel[ ] any suspicion that institutional litigants and others who might have ready access to collections of unpublished opinions had an advantage over other litigants without such access." Unpublished Judicial Opinions, supra note 103, at 5, 7 (statement of Judge Samuel A. Alito, Jr., U.S. Court of Appeals for the Third Circuit; Chair, Advisory Committee on the Federal Rules of Appellate Procedure). [FN106]. This section does not attempt to comprehensively cover the current availability of unpublished opinions in all jurisdictions, both state and federal. It does, however, try to provide a snapshot into the current state of the federal appellate unpublished opinions and a brief glimpse into the availability of state appellate unpublished opinions. [FN107]. Arnold, supra note 64, at 220 (trying to dispel the notion that unpublished opinions constituted a "secret" body of law by noting that the opinions could be purchased by anybody). [FN108]. West's publication devoted to federal appellate published decisions. [FN109]. LEXIS first became available in 1973 and Westlaw first became available in 1975. L. Ray Patterson & Craig Joyce, Monopolizing The Law: The Scope of Copyright Protection for Law Reports, 36 UCL.A L. Rev. 719, 720 n.3 (1989) (describing the emergence of Westlaw and LEXIS). [FN110]. The Federal Reporter contained the full-text of published federal appellate decisions and, starting in the mid-1970's, the table information for unpublished federal appellate decisions. [FN111]. Although unpublished decisions were not widely available to ordinary litigants, institutional litigants began to accumulate "banks" of unpublished decisions in certain practice areas. Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 940, 955-57 (1989) (arguing that certain institutional litigants, such as governmental agencies and larger law firms, enjoy unusual access to unpublished opinions and this gives them an inherent advantage under the limited publication plans); Howard Slavitt, Selling the Integrity of the System of Precedent: Selective Publication, Depublication, and Vacatur, 30 Harv. C.R.-C.L. L. Rev. 109, 130-31 (1995) (also noting that institutional litigants have better access to unpublished opinions); Charles G. Mills, Anastasoff v. United States and Appeals in Veterans' Cases, 3 J. App. Prac. & Process 419, 422-23 (2003) (explaining how the government used its knowledge of unpublished opinions to its advantage in veteran's benefits appeals); Yellow Book of N.Y. L.P. v. Dimilia, 729 N.Y.S.2d 286, 288 (N.Y. Civ. Ct. 2001) (chastising an institutional litigant for only presenting favorable unpublished opinions). [FN112]. E-mail from Tim Gamble, Westlaw Director of Content Operations (Sept. 26, 2006, 3:54 pm CST) (on file with author). [FN113]. It should be noted that using Westlaw and LEXIS remains quite expensive. As of January 2006, a law firm without a special Westlaw deal would pay $100/search in the Texas state and federal cases database (TX-CS-ALL) or the federal cases database (ALLFEDS). Alternatively, a law firm could choose "hourly" pricing and pay $16.63/minute in the Texas state and federal database or $13.86/minute in the federal cases database. These prices do not including printing costs, and searching in other databases can be even more expensive (e.g., $159/search in ALLCASES). Westlaw Plan 1 Pricing Guide, January 2006 (on file with author). In fairness, most law firms sign contracts and pay a flat rate for unlimited Westlaw usage in certain databases, and these contracts greatly reduce these costs. It is also widely known that LEXIS has similar pricing schemes. For example, as of January 2006, a law firm without a special LEXIS deal would pay $118/search in the Texas state and federal cases database (MEGA, TXMEGA) or $116/search in the federal cases database (GENFED, COURTS). Alternatively, a law firm could choose "hourly" pricing and pay $15.57/minute in the Texas state and federal database (MEGA, TXMEGA) or $12.93/minute in the federal cases database (GENFED, COURTS). LexisNexis Top Libraries/Files Customer Ready Pricing Overview, Per Search & Hourly Pricing, Current as of January 2006 (on file with author). [FN114]. Brooks, supra note 54, at 259-60 (reviewing the coverage of unpublished cases in the Federal Appendix). It should also be noted that the Federal Appendix does not contain various other orders issued by the courts for which no publication decision is made by the court. "These orders may or may not be furnished to West and other publishers, but those that are furnished to West are only included on Westlaw and are not published in the Federal Appendix. For the most part these are summary orders or routine procedural orders with little or no legal reasoning or discussion of the facts, and may be sent to West, or another publisher, by the clerk or by an attorney or party to the case. These represent only a small percentage of the total cases received." Gamble, supra note 112. [FN115]. At that time, the Third, Fifth, and Eleventh Circuits still refused to distribute the full-text of its unpublished opinions for inclusion in Westlaw, LEXIS, or the Federal Appendix. Brooks, supra note 114, at 260 and accompanying text, including Table #2 (showing the availability of unpublished opinions by circuit). [FN116]. Gerken, supra note 20, at 96. [FN117]. Brooks, supra note 54, at 259-60. (noting that the Federal Appendix, in 2001, published the table decisions for the Third, Fifth, and Eleventh Circuit unpublished opinions because those circuits refused to release the full-text unpublished opinions); see also supra notes 112-120 and accompanying text, including Table #2 (showing when each circuit began releasing its unpublished opinions to Westlaw and LEXIS, and for publication in the Federal Appendix). [FN118]. In 2004, for instance, only 700 federal appellate opinions appeared on Westlaw but not in either the Federal Reporter or Federal Appendix. E-mail from Tim Gamble, Westlaw Director of Content Operations (April. 20, 2006, 1:50 pm CST) (on file with author).; see also Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 Stan. L. Rev. 1435, 1466-67 (2004) (explaining that "West itself edits out from the Federal Appendix some opinions released to it by the courts on the basis that they are 'so purely formal as to not allow a synopsis and at least one headnote."'). [FN119]. As one commentator has noted, "'Unpublished' is of course a misnomer, and increasingly so; the opinions are posted online by the courts issuing them and they appear not only in electronic form in databases such as Westlaw and LEXIS, but also in traditional print in West's Federal Appendix. The word functions usefully, however, as a term of art, denoting opinions that the issuing court designates as 'unpublished."' Barnett, supra note 75, at 473 n.2; see also Ricks, supra note 22, at 220-21 (noting that the publication of unpublished opinions makes the label "unpublished" a misnomer). [FN120]. Greater differences exist for older federal unpublished appellate opinions because the full-text for these unpublished opinions are not available in a published reporter and many, depending upon the year and federal circuit, are not available via Westlaw or LEXIS. [FN121]. E-Government Act of 2002, Pub. L. No. 107-347, s 205(a)(5), 116 Stat. 2899, 2913 (codified at 44 U.S.C. s 3501). [FN122]. Pether, supra note 118, at 1465-67 (explaining that court websites often do not provide a convenient means of searching unpublished opinions). [FN123]. s 205(a)(5), 116 Stat. at 2913. [FN124]. s 205(b)(2), 116 Stat. at 2914. [FN125]. Stephen B. Burbank, Judicial Accountability to the Past, Present and Future: Precedent, Politics and Power, 28 U. Ark. Little Rock L. Rev. 19, 24 n.20 (2005) (citing the Memorandum on Compliance with Website Requirements of the E-Government Act to All Chief Judges, U. S. Courts, from Leonidas Ralph Mecham 2 (Nov. 10, 2004) (on-file with author)). [FN126]. For instance, Justice Alito has claimed that "with the advent of computer assisted legal research ... the overwhelming majority of [unpublished] opinions are now readily available to the public, often at minimal or no cost because they are posted on court web sites." Unpublished Judicial Opinions, supra note 103, at 7 (statement of Judge Samuel A. Alito, Jr., U.S. Court of Appeals for the Third Circuit; Chair, Advisory Committee on the Federal Rules of Appellate Procedure). [FN127]. Professor Mills has correctly noted that "free websites that include collections of court opinions typically offer only a very limited and rudimentary set of retrieval mechanisms." Mills, supra note 26, at 442. Professor Pether has correctly noted that "availability only becomes meaningful with the availability of searching tools that work, whether they are in the form of Boolean or natural language searching of computer or Internet databases." Pether, supra note 118, at 1516. [FN128]. The value of these key word searches is diminished by the website's failure to explain the specifics of the search engine. This failure forces the researcher to guess about how the search engine processes the search terms and how to best formulate an effective search. [FN129]. The Sixth, Seventh, and Federal Circuit websites are currently not text searchable. See also Pether, supra note 118, at 1465 (questioning what text-searchable means and how it will be implemented). [FN130]. The First, Sixth and Seventh Circuit websites currently provide limited online help features. [FN131]. The Second, Sixth, Tenth, and Federal Circuit websites currently do not have an online "help" feature. [FN132]. Only the Second, Third, and Eighth Circuit websites currently provide an abstract or description for each case generated via the search. See also Mills, supra note 26, at 442 (addressing the problems with cases retrieved on free websites). [FN133]. Id. at 441. [FN134]. The Second, Third, Seventh, and D.C. Circuit websites, currently fail to convey the years covered by the online databases. [FN135]. See Howard J. Bashman, Commentary: It's Time to Abolish "Invisible" State Appellate Court Rulings, http://www.law.com/jsp/article.jsp? id=1167991334572 (last visited Jan. 8, 2007) (noting that unpublished opinions are less readily available on the state court level than on the federal level). [FN136]. Mark E. Steiner, After the Flood: Legal Research Implications of the TRAP Amendments, 2006 State and Federal Appeals 19.6, available at http:// tex-app.org/articles/steiner-trap47.pdf. [FN137]. See Andrew T. Solomon, A Simple Prescription for Texas's Ailing Court System: Stronger Stare Decisis, 37 St. Mary's L.J. 417 (2006) (explaining and critiquing Texas's complex intermediate appellate court structure). [FN138]. Steiner, supra note 137, at 19.6. [FN139]. Collins v. Ison-Newsome, 73 S.W.3d 178, 184 (Tex. 2001). [FN140]. Steiner, supra note 137, at 19.15. [FN141]. Westlaw also recognizes that various courts in one state may provide unpublished opinions in different ways. For example, one intermediate appellate court may provide dispositional table decisions, another court may provide the full-text for unpublished decisions, and another court may refuse to provide anything for unpublished decisions. Gamble, supra note 112. [FN142]. E-mail from Tim Gamble, Westlaw Director of Content Operations (Sept. 19, 2006, 17:30:27 CST) (on file with author). [FN143]. See supra notes 110-111 and accompanying text (explaining table decisions in greater detail). [FN144]. See Barnett, supra note 101, at 4 n.12 (noting that only the Fifth and Eleventh Circuits had refused to post its unpublished opinions online and make them available to legal publishers); see also Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 105 (1999) (stating that the Fifth Circuit was one of only three circuits that did "not make their unpublished opinions available to any electronic source"). [FN145]. Although most of the post-1992 unpublished opinions now appear on the Fifth Circuit's website, not all post-1992 unpublished opinions appear on the website. The Clerk of the Fifth Circuit admits that "not all opinions from 1992 onward are in our electronic database, but [we] do not have a good handle on which ones are not." When the Fifth Circuit loaded the 27,000 older unpublished opinions onto its website, these opinions "were not all checked individually and loaded separately. Instead, available databases were merged and loaded. I doubt anyone has an existing listing of the opinions which did or did not load successfully." E-mail from Charles "Fritz" Fulbruge, Fifth Circuit Clerk (Sept. 8, 2006, 12:05:29 CST) (on file with author). [FN146]. E-mail from Charles "Fritz" Fulbruge, Fifth Circuit Clerk (Sept. 15, 2006, 17:07:53 CST and Sept. 20. 2006, 2:51 pm CST) (on file with author) (recognizing the near impossibility of finding binding pre-1992 unpublished opinions). [FN147]. E-mail from Charles "Fritz" Fulbruge, Fifth Circuit Clerk (Sept. 15, 2006, 17:07:53 CST) (on file with author) (explaining that either Westlaw or LEXIS could download all of the Fifth Circuit unpublished opinions from the Fifth Circuit's website). [FN148]. By the end of 2007, Westlaw plans to add the full-text for all available Fifth Circuit unpublished opinions--those issued after 1992 that can be downloaded from the Fifth Circuit's website. Currently, Westlaw only has the full-text for Fifth Circuit unpublished decisions issued after July 2001. E-mail from Tim Gamble, Westlaw Director of Content Operations (June. 8, 2007, 10:50 am CST) (on file with author). [FN149]. LEXIS has no plans to add earlier pre-2003 unpublished opinions. E-mail from Kirc J. Breissinger, LexisNexis Product Development & Marketing Manager, Law Schools (Oct. 20, 2006, 10:06:54 CST) (on file with author). [FN150]. The Fifth Circuit's Clerk, Mr. Charles "Fritz" Fulbruge, compiled these numbers using the Clerk's Office Annual Reports. E-mail from Charles "Fritz" Fulbruge, Fifth Circuit Clerk (Sept. 7, 2006, 16:52:44 CST and Sept. 15, 2006, 17:07:53 CST) (on file with author). The more recent statistics are reported in the Clerk's Office Annual Statistical Report entitled "Judicial Workload Statistics" available on the Fifth Circuit's website at http:// www.ca5.uscourts.gov/clerk/docs/arstats.pdf. The Fifth Circuit figures are for the year beginning on July 1 and ending on June 30 (i.e., the 2005 statistics cover the period beginning July 1, 2005 and ending June 30, 2005). [FN151]. By the end of 2007, Westlaw plans to add the full-text for Fifth Circuit unpublished decisions issued after 1992. Currently, Westlaw only has the full-text for Fifth Circuit unpublished decisions issued after July 2001. Gamble, supra note 148. [FN152]. E-mail from Tim Gamble, Westlaw Director of Content Operations (Sept. 20, 2006, 10:15:42 CST and 16:56:10 CST) (on file with author). [FN153]. LEXIS has no plans to add earlier pre-2003 unpublished opinions. Breissinger, supra note 150. [FN154]. See supra notes 95-100 and accompanying text (explaining the Fifth Circuit's rule regarding binding unpublished opinions in greater detail). [FN155]. They are only available from the parties, the court, or from some organization that has privately banked these unpublished opinions. See also supra notes 107-111 and accompanying text (explaining the resources for earlier unpublished opinions in greater detail). [FN156]. The Fifth Circuit only has data for the number of unpublished opinions issued after 1982. Prior to that time, the Fifth Circuit only has data for the number of opinions issued and did not differentiate between published and unpublished opinions. Fulbruge, supra note, 150. [FN157]. As mentioned previously, Westlaw intends to make Fifth Circuit unpublished opinions issued after 1992 available, but LEXIS has no plans to make these unpublished opinions available. Gamble supra note 148; Breissinger, supra note 149. [FN158]. E-mail from Charles "Fritz" Fulbruge, Fifth Circuit Clerk (Sept. 7, 2006, 4:52 pm CST) (on file with author). [FN159]. Pruitt v. Levi Strauss & Co., 932 F.2d 458, 467 n.2 (5th Cir. 1991) (Johnson, J., concurring and dissenting), abrogated on other grounds by Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181 (5th Cir. 1995). [FN160]. Id. [FN161]. The concurrence specifically noted that: Because the opinion in Falconer was unpublished and unavailable, Pruitt in the instant case was completely unaware that this Court interpreted the Texas statute of frauds to preclude the enforcement of 'indefinite term' oral contracts. As a consequence, Pruitt could not seek reasonable alternatives to an undesirable judgment in federal court. Pruitt, 932 F.2d at 467 n.2. [FN162]. Lawrence Duncan McLachlan, Gandy Dancers on the Web: How the Internet Has Raised the Bar on Lawyers' Professional Responsibility to Research and Know the Law, 13 Geo. J. Legal Ethics 607, 609 (2000) (explaining that "the duty to research and know the law is discussed in the context of both ethical and malpractice standards that are applied to traditional and electronic research."). [FN163]. Commentators have warned about other ethical dilemmas created by unpublished opinions. Professor Goering has warned that: No-citation rules put attorneys in a double bind: If appellate counsel conscientiously abides by the duty of candor to the tribunal, the attorney risks the imposition of sanctions by that very court for citing opinions designated as "unpublished," in violation of the [no-citation] rules of the court and the ethical rules requiring attorneys to follow them. On the other hand, if appellate counsel abides by local rules that prohibit or disfavor the citation of "unpublished" opinions, the attorney risks the imposition of sanctions for violating the ethical duty of candor, the requirements of Fed. R. Civ. P. 11, the obligations on appellate counsel set forth in Fed. R. App. P. 46, and the duty to competently represent the client. Goering, supra note 16, at 79; Sullivan, supra note 103, at 430-445 (discussing the applicability of ethical rules and the use of unpublished opinions in trial courts). [FN164]. Restatement (Third) of Law Governing Lawyers s 42 cmt. a (2000) (noting that a lawyer is subject to discipline based upon the ethical rules of conduct and the laws governing civil liability and criminal prosecution). [FN165]. Monroe H. Freedman & Abbe Smith, Undertanding Legal Ethics 2 (3d ed 2004); Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 36 (4th ed 1996). [FN166]. Freedman & Smith, supra note 165, at 4. [FN167]. Model Code of Professional Responsibility preliminary statement (1970). [FN168]. Geoffrey C. Hazard, Jr., Legal Ethics: Legal Rules and Professional Aspirations, 30 Clev. St. L. Rev. 571, 571-72 (1980) (arguing that a "comprehensive revision is required because the structure of the present Code has turned out to be disastrous due to its three-level structure"); Robert J. Kutak, The Rules of Professional Conduct in an Era of Change, 29 Emory L.J. 889, 899 (1979) (arguing that "a constant criticism of the Model Code was that it tended to speak with two voices, creating conflict between its description of aspirations on the one hand and its proscription of certain conduct on the other"). [FN169]. Bruce A. Green & Fred C. Zacharias, Permissive Rules of Professional Conduct, 91 Minn. L. Rev. 265, 267 n.4 (2006) (noting that "The majority of states have based their disciplinary rules on some version of the Model Rules. The Model Rules were comprehensively amended in 2002, and many states have either amended their codes in light of the changes or have begun examining their codes with an eye to doing so."); Note, Ethical Codes in Legal Malpractice, 109 Harv. L. Rev. 1102, 1103 (1996) (noting that as of 1995, "38 states--plus the District of Columbia and the Virgin Islands--had adopted the Model Rules in some form"). [FN170]. Model Rules of Prof'l Conduct Ann. R. 1.1 (4th ed. 1999). [FN171]. Id. cmt. 4 (citing Baird v. Pace, 752 P.2d 507, 509 (Ariz. 1987)). [FN172]. Model Code of Prof'l Responsibility DR 6-101 (1980). [FN173]. McLachlan, supra note, 162, at 613. [FN174]. McLachlan, supra note, 173, at 614 n.35 (listing cases that have led to disciplinary actions after an attorney failed to meet the professional conduct standards). [FN175]. Sullivan, supra note 103, at 436. [FN176]. Model Rules of Prof'l Conduct R. 3.3(a) (2002). [FN177]. Rule 3.3(a)(2) of the Model Rules of Professional Conduct provides that "a lawyer shall not knowingly ... fail to disclose to the tribunal 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." Model Rules of Prof'l Conduct R. 3.3(a)(2); see also Model Rules of Prof'l Conduct R. 1.6; Angela Gilmore, Self-Inflicted Wounds: The Duty to Disclose Damaging Legal Authority, 43 Clev. St. L. Rev. 303, 312-13 (1995) (noting that the lawyer's duty to the court trumps even the lawyer's duty of loyalty to the client because the lawyer may never prejudice the administration of justice). [FN178]. Sullivan, supra note 103 at 435. As one court has noted: This selective citation of authorities, when so few decisions are dead on point, is not good faith advocacy, or even legitimate "hard ball." At best, it constitutes failure to confront and distinguish or discredit contrary authority, and, at worst, constitutes an attempt to hide from the court and opposing counsel a decision that is adverse ... simply because it is adverse. Rural Water Sys. #1 v. City of Sioux Ctr., Iowa, 967 F. Supp. 1483, 1498 n.2 (N.D. Iowa 1997). [FN179]. Fed. R. Civ. P. 11. Many states use similar, if not identical, language as federal Rule 11 and have used federal court analysis to resolve state Rule 11 issues. Marguerite L. Butler, Rule 11- Sanctions and a Lawyer's Failure to Conduct Competent Legal Research, 29 Cap. U. L. Rev. 681, 682 n.3, 702 n.119 (2002). In addition, Model Rule of Professional Conduct 3.1 provides in relevant part: "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. Model Rules of Prof'l Conduct R. 3.1 (2002). [FN180]. Fed. R. Civ. P. 11. The 1983 amendments to Rule 11 changed from a subjective to an objective standard for reasonableness. [FN181]. In re Hendrix, 986 F.2d 195, 201 (7th Cir. 1993) (Posner, J.) (noting that an appeal was frivolous when it was "filed in face of dispositive contrary authority without citing it or making arguments for overruling" that authority); McEnery v. Merit Sys. Prot. Bd., 963 F.2d 1512, 1516-17 (Fed. Cir. 1992) (ruling that sanctions were appropriate when the attorney failed to cite or discuss controlling authority). [FN182]. See Model Rules Ann. (2002) (setting forth the possible consequences for breaches of the Model Rules). [FN183]. Model Rules of Prof'l Conduct Scope (2002). Similarly, the preliminary statement to the Model Code stated that it did not "undertake to define standards for civil liability of lawyers for professional conduct." Id. preliminary statement. [FN184]. Resolution Trust Corp. v. Gardner, 788 F. Supp. 26, 29-30 (D.D.C. 1992) ("A violation of one of the D[isciplinary] R[ule]s is conclusive evidence of the breach of the attorney's common law fiduciary obligations."); Petrillo v. Bachenberg, 623 A.2d 272, 279 (N.J. Super. Ct. 1993) ("Where an attorney fails to meet the minimum standard of competence governing the profession, such failure can be considered evidence of malpractice."); see also Note, The Evidentiary Use of the Ethics Code in Legal Malpractice: Erasing A Double Standard, 109 Harv. L. Rev. 1102 (1996) (analyzing the uses of Ethical Codes in malpractice actions). [FN185]. Lipton v. Boesky, 313 N.W.2d 163 (Mich. Ct. App. 1981); Battie v. Firnschild, 394 N.W.2d 107 (Mich Ct. App. 1986). [FN186]. Laura A. O'Connell, Legal Malpractice: Does the Lawyer Have a Duty to Use Computerized Research?, 35 Fed. of Ins. Couns. Q. 77, 83 (2004); see also Randy Diamond, Advancing Public Interest Practitioner Research Skills in Legal Education, 7 N.C. J. Law & Tech. 67, 67-68 (2005) (warning that "[l]awyers who refuse to venture onto the information superhighway are warned that they may fail to meet minimum legal research standards"). [FN187]. Jerry's Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 691 N.W.2d 484, 494-95 (Minn. Ct. App. 2005) (noting that Minnesota law treats unpublished opinions as non-precedential, but also noting that "attorneys are not prohibited from mentioning unpublished opinions in pretrial conferences, hearings, trials, memoranda, or briefs"), aff'd as modified by 711 N.W.2d 811 (Minn. 2006). [FN188]. Id. at 494 (quoting Sjobeck v. Leach, 6 N.W.2d 819, 822 (Minn. 1942)). [FN189]. Minn. Stat. s 480A.08, subd. 3(c) (2002) (providing that unpublished opinions are not precedential, but may be persuasive and can be cited for such purposes). [FN190]. Jerry's Enters., Inc., 691 N.W.2d at 495. [FN191]. Id. at 494. [FN192]. Id. at 495. [FN193]. Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23, 38-39 (2005). [FN194]. See supra notes 142-158 and accompany text, including Table #3 (explaining the varied availability of Fifth Circuit unpublished opinions). [FN195]. See supra notes 155-158 and accompany text, including Table #'s 4 & 5 (discussing the Fifth Circuit's binding unpublished opinions that are not readily available). [FN196]. See supra notes 49-54 and accompanying text (showing mounting evidence that unpublished opinions are not limited to easy, uncontroversial cases). [FN197]. As previously noted, the Fifth Circuit probably cannot make these unpublished opinions more readily available because a comprehensive collection of these opinions does not exist. See supra note 146 and accompanying text (recognizing the near impossibility of finding binding pre-1992 unpublished opinions). For this reason, the Fifth Circuit should probably amend Rule 47 and make these unpublished opinions non-precedential. [FN198]. See supra notes 112, 113, 126-135 and accompanying text, including Table #2 (showing the uneven availability of unpublished federal appellate opinions on Westlaw, LEXIS and the circuit websites). [FN199]. See supra notes 136-141 and accompanying text (discussing the sporadic and uneven nature of unpublished appellate opinions in Texas). [FN200]. Bashman, supra note 135. [FN201]. Justice Alito has claimed that "with the advent of computer assisted legal research ... the overwhelming majority of [unpublished] opinions are now readily available to the public, often at minimal or no cost because they are posted on court websites." Unpublished Judicial Opinions, supra note 103 (statement of Judge Samuel A. Alito, Jr., U.S. Court of Appeals for the Third Circuit; Chair, Advisory Committee on the Federal Rules of Appellate Procedure). [FN202]. Attorneys should not be forced to continuously compare the availability of binding law that is available on the court's website, as compared to Westlaw, as compared to LEXIS. This is the precise situation faced by attorneys in the Fifth Circuit (and many other jurisdictions), and most attorneys are probably completely unaware that more binding caselaw can be found on the Fifth Circuit's website, than on Westlaw or LEXIS. 26 Miss. C. L. Rev. 185