HOWT explains here why citation to unpublished opinions should never be a problem: "If we have done our job properly, there is no need to ever cite an unpublished opinion because, theoretically at least, there should be a published opinion on the same point."
ALso, he notes: "an unpublished opinion is not circulated beyond the members of the panel while a published opinion is circulated to the full court for review and comment (although only the members of the panel have a vote on the outcome)."
These are good reasons why an unpublished opinion is less persuasive, but not good reasons for prohibiting an enterprising lawyer to cite an unpublished opinion, and make of it whatever he can.
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