Variations Among Jurisdictions

Variations Among Jurisdictions

A lawyer answers to the rule that the lawyer's own state adopted, not to the Model Rules as such. The ABA sentence directs a lawyer in an ex parte proceeding to inform the tribunal of all material facts known to the lawyer that will enable it to make an informed decision, whether or not the facts are adverse.¹ A state may adopt that sentence word for word and still depart from the Model Rules in two ways: by rewriting the provisions around it, or by changing how far it reaches. Florida's rule illustrates the first, South Dakota's the second.

Florida states the extent of the lawyer's duties in its own words: "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."² Two features of that sentence matter. It speaks of "this rule," so every duty the rule states, including the ex parte duty, falls inside the confidentiality override by the text's own terms, and no one has to infer the result. And the duties outlast the proceeding. A student applying Florida's rule can answer a confidentiality question straight from that text, while a student applying the Model Rule relies on the reasoning developed in the earlier discussion of confidentiality.

South Dakota changes the reach of the duty instead. The state supreme court's opinion in re Discipline of Ortner quotes the state's version of the ex parte paragraph: "In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall 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."³ The inserted phrase is the only difference from the Model Rule sentence, yet it moves the boundary. The special duty to supply adverse facts does not attach to a grand jury presentation or to an application for a search warrant, even though the lawyer appears without the opposing side. The quoted text does not explain the exception, and an exam answer does not need an explanation. It needs the boundary the adopted words draw.

A stem that sends a prosecutor to a judge for a search warrant, with the suspect absent, and then asks whether the prosecutor had to disclose a damaging fact, has two defensible answers. The jurisdiction picks between them.

The exception removes only the duty to inform. As quoted, it qualifies the ex parte sentence and nothing else. The separate ban on false statements of material fact or law to a tribunal, which Florida's text lists among the rule's duties, is untouched, so the State Two prosecutor still may not tell the judge anything false.⁴ The exception is also narrow, because it names two settings. A lawyer who applies ex parte for a temporary restraining order in South Dakota is in neither, and the full duty to disclose adverse material facts applies to that application just as it does under the Model Rule.

Students go wrong in two opposite ways. Some assume every state copies the Model Rule exactly and ignore a variation the problem has plainly handed them. Others treat any variation as grounds for discarding the whole framework, when a variation changes only what its words change. Florida's quoted provision speaks to confidentiality and duration, not to which facts must be disclosed, and South Dakota's removes two settings and nothing more.