Confidentiality and Privilege

Rule 3.3(d) requires a lawyer in an ex parte proceeding to inform the tribunal of “all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”¹ The rule's limits are materiality, the lawyer's knowledge, and the decision the judge must make. It makes no exception for facts the client wants kept private. That silence matters. A lawyer learns most of what the lawyer knows about a matter in confidence, and the facts most likely to be both material and adverse, such as a weakness in the claim or a delay that undercuts the claimed emergency, are the facts a client most wants protected.

Two obligations collide here. Rule 1.6, the confidentiality rule, ordinarily keeps what the client has shared from reaching anyone else. Rule 3.3(d) sends the same information to the judge. The rules resolve the collision in two steps. Ordinary confidentiality yields to the disclosure duty. Information that is genuinely privileged does not yield, so the override stops short of that narrower category.

Disclosure Despite Confidentiality

The rule's continuing-duties paragraph, Rule 3.3(c), speaks directly to the collision: “The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.”² That sentence fixes two things. It fixes duration: the duties last until the proceeding ends, so a lawyer cannot treat an early stage of the hearing as having discharged them. It also fixes priority: when honoring the duties means telling the tribunal something the client wanted kept private, the duty to the tribunal controls. The comment explains why. A lawyer's obligation to present the client's case with persuasive force, while maintaining the client's confidences, is qualified by the duty of candor to the tribunal.³

Read the text closely, because paragraph (c) names paragraphs (a) and (b) and never mentions paragraph (d), where the ex parte duty lives. Do not say that paragraph (c) by itself overrides confidentiality for ex parte disclosures. The conclusion rests on two other supports. Paragraph (d) is categorical: it reaches all material facts the lawyer knows that the tribunal needs for an informed decision, adverse or not, and carves out nothing for facts the client wants private.⁴ And the accepted account of the rule holds that a lawyer who chooses to make an ex parte application must reveal all material information, even information that would otherwise be confidential.⁵ Florida's version removes the doubt by writing its extent-of-duties paragraph to cover “this rule”: “The duties stated in this rule continue beyond the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by rule 4-1.6.”⁶ Florida also says the duties continue “beyond” the conclusion of the proceeding where the ABA text says “to” it. A later section collects variations of this kind.

Confidentiality yields because of how the ex parte duty arises. The duty attaches because the lawyer has chosen to ask a judge for relief while the opposing party is absent, and that absence hampers the adversarial search for truth.⁷ With no opponent to raise the facts that cut the other way, the lawyer's disclosure is all that stands between the judge and a one-sided record. If a client's wish for secrecy could excuse silence, the client could obtain an order against a party who never had a chance to object, on a record edited for the purpose. The override also treats the client fairly. The ex parte route is a choice, and its price is that the judge hears everything material so that the absent party receives fair consideration.

The client's request would carry more weight in a different procedural posture.

The two scenes differ in one decision: whether the opponent is in the room. That decision moves the analysis from override to the ordinary baseline, under which a lawyer must be truthful but need not volunteer facts that hurt the client.⁸ A lawyer who defends silence about a damaging fact by saying “the client told me in confidence” wins that argument in the noticed hearing and loses it in the ex parte proceeding, so long as nothing the lawyer says is false.

The override has edges of its own. It reaches the material facts the lawyer knows and reasonably believes are necessary to an informed decision. It does not turn the hearing into a confession of everything the client has shared.⁹ It also stops short of one category, which the next part takes up.

Privileged Information Stays Protected

One line cuts through the override. A lawyer who chooses to make an ex parte application must reveal all material information, even information that would otherwise be confidential, but need not reveal information that is actually privileged: information the lawyer reasonably believes would not be subject to discovery or subpoena by reason of an evidentiary privilege such as the one protecting attorney-client communications.¹¹ The text of Rule 3.3(d) states no such exception.¹² The limit comes from the accepted reading of the rule. Two protections that sound alike therefore receive opposite treatment. Confidentiality is the lawyer's ethical duty under Rule 1.6 to keep client information from other people, and in this setting it yields. Privilege is a rule of evidence that keeps a protected communication out of a proceeding even when it is relevant, and in this setting it holds.

The different treatment follows from what the disclosure duty replaces. In a contested hearing the opposing party would present the facts that cut against the client, and Rule 3.3(d) makes the appearing lawyer supply what the absent opponent would have supplied.¹³ Information that is confidential but not privileged falls within that substitution, because discovery or subpoena could reach it, and keeping it back would give the judge less than a contested hearing would have. Privileged information falls outside the substitution. Even a fully adversarial opponent could not have compelled it, so the judge in a contested hearing would never have seen it either. Withholding it leaves the tribunal exactly where the adversary system would have left it. A contrary rule would make the client pay for using the ex parte route by surrendering a protection the client would have kept in an ordinary hearing.

Because the standard turns on the lawyer's reasonable belief, labels settle nothing. A fact is not privileged because it is embarrassing, because the client asked that it stay quiet, or because the lawyer happens to know it. The question is whether a reasonable lawyer would expect an evidentiary privilege to shield the information from discovery or subpoena. A single file can therefore hold both kinds of information. A client's letter to a supplier is a communication to a third party, and an opponent could demand it. A request for legal advice sent only to the lawyer is the kind of communication the attorney-client privilege exists to protect.¹⁴

Hypothetical Illustration

A lawyer applies without notice for a temporary restraining order against a former licensee, asserting that the licensee is about to destroy records. Two items in the lawyer's file bear on whether the danger is real. One is a letter the client wrote to a supplier last spring, kept in the client's own files, saying the licensee had always handled records with great care. The other is an email the client sent only to the lawyer, asking for legal advice and admitting private doubts about how urgent the situation is. Each item is material, each hurts the application, and the client wants neither mentioned. The letter is confidential but not privileged, because the licensee could demand it in discovery, so the lawyer must tell the judge about it. The email is a privileged communication that the lawyer reasonably believes the licensee could not reach by discovery or subpoena, so the lawyer need not reveal it.

The two items are equally damaging and equally confidential, so neither harm to the client nor the Rule 1.6 label separates them. What separates them is whether the opponent, had the opponent been in the room, could have pried the information loose. Withholding the email gives the lawyer no license to say anything untrue about the same subject. The baseline prohibition on false statements to a tribunal still applies in an ex parte hearing, so the lawyer may stay silent about the email but may not tell the judge that the client has no doubts about the urgency.¹⁵

Exam Analysis Steps

The override and its limit operate on each fact separately, so the cleanest way to apply them is to sort the lawyer's knowledge item by item:

Confirm that the proceeding is an authorized ex parte proceeding. If it is not, the ordinary baseline applies: the lawyer must be truthful but has no duty to volunteer.
Identify every fact the lawyer knows that is material to the judge's informed decision, whether or not it helps the client.
For each fact, ask whether the lawyer reasonably believes an evidentiary privilege, such as the attorney-client privilege, would shield it from discovery or subpoena.
Disclose every material fact that fails that test, even if Rule 1.6 treats it as confidential. Withhold only what passes it, and make no false statement about the withheld subject.

Students most often go wrong by treating confidential and privileged as synonyms, and the error runs in two directions. One version excuses silence about an adverse document because the client shared it in confidence, which is no defense in an ex parte proceeding. The other withholds everything learned from the client on the theory that all of it is privileged, which ignores that the test asks whether discovery or subpoena could reach the information. The first under-discloses, and the second stretches privilege over facts an opponent could have obtained.