Candor to the Tribunal: A View from Both Sides of the Bench

The Honorable Larry A. Burns (Ret.)

On March 5, 2026, the Federal Bar Association San Diego Chapter was honored to host the Honorable Larry A. Burns (Ret.), neutral at Judicate West, for an engaging ethics webinar on candor to the tribunal. Judge Burns served as a federal judge on the U.S. District Court for the Southern District of California for 27 years, trying more than 150 cases to jury verdict as a lawyer and presiding over more than 300 federal jury trials as a judge before joining Judicate West. The presentation was moderated by Hannah Ohara, Vice President of Civil Legal Education for the San Diego FBA.

Judge Burns opened with a fundamental premise: “Candor to the tribunal is the foundation that allows our system of justice to function at all.” He emphasized that the justice system depends on trust, and without trust, advocacy becomes mere performance and judging becomes suspicion. This duty of candor flows from both the professional oath and ethical rules, including ABA Model Rule 3.3, which prohibits false statements of fact or law, requires correction of false statements, and mandates disclosure of controlling adverse authority. The ethical rules also have ties to the rules of practice, like Federal Rule of Civil Procedure 11.

Judges rely on lawyers because they cannot independently verify everything. When candor erodes, the courtroom becomes less efficient and less fair. As Judge Burns memorably stated, credibility is “earned in drops and lost in buckets.”  

Judge Burns recalled attorneys who distinguished themselves with unfailing candor, noting that when these trusted advocates spoke, he listened carefully. Conversely, lawyers who were careless with facts or distorted the record forced him to adopt a “trust but verify” approach. The consequences extend beyond a single case—judges, opposing counsel, and jurors all remember, and reputations travel.

Judge Burns advised that candor is not weakness but credibility. He specifically encouraged lawyers to find something to concede in every case, as concessions demonstrate confidence and intellectual honesty while building credibility and focusing the decision-maker on what truly matters.

He illustrated this with an example from a criminal case he tried as a prosecutor, where he withdrew his objection to his opponent presenting hearsay evidence. Rather than fighting its admission, Judge Burns’ concession made the weakness of the evidence readily apparent to the jury. As Judge Burns explained, the key is to concede peripheral issues, not the structural pillars of your case.

Judge Burns also discussed candor in different forums. In appellate advocacy, candor requires accurate facts, correct standards of review, and acknowledgment of adverse precedent, with lawyers answering questions directly during oral argument. In mediation, negotiation allows for positioning and puffery, but misrepresenting material facts or settlement authority remains prohibited.

Judge Burns addressed artificial intelligence as an emerging threat to candor. While AI is widely used for legal work, it can produce hallucinations including fake cases and quotations, leading to increasing numbers of filings with false citations. His rule: always verify AI-generated citations and authorities, and when mistakes occur, admit them, correct them, and apologize.

Judge Burns concluded with powerful principles: the best advocates are scrupulously honest, as candor simplifies complex cases and builds the kind of trust judges rely upon. Judges forgive losing arguments more readily than misdirection, and most importantly, your reputation will outlive any single case.

The presentation concluded with a Q&A session addressing when to report opposing counsel for candor violations, AI disclosure obligations, and candor in judicially-led mediations.

We extend our sincere gratitude to Judge Burns for sharing his expertise with the FBA membership and providing invaluable guidance on maintaining the integrity and trust essential to our justice system.