Candor in Ex Parte Proceedings

Rule 3.5(b) permits a lawyer to speak with a judge without the other side when law or a court order authorizes it, and that permission carries an obligation.¹ The obligation is Rule 3.3(d): in an ex parte proceeding, the lawyer must 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.² Comment 14 states the same duty in terms of its purpose. The lawyer must disclose the material facts the lawyer knows and reasonably believes are necessary to an informed decision, so that the judge understands the underlying facts well enough to give the absent party fair consideration.³

The duty is special because of what the adversary system ordinarily supplies. Each party is entitled to be heard before a neutral magistrate, so that both sides of a case reach the judge in balance. In an ex parte proceeding, the party who would present the opposing side is not in the room, and the truthfinding function suffers for it. Rule 3.3(d) answers that gap by requiring the lawyer who appears alone to put before the judge the material facts the absent party would have wanted heard, favorable or not.⁴

The baseline for every lawyer before a tribunal is truthfulness. A lawyer may not knowingly make a false statement of fact or law to the tribunal, and must correct a false statement of material fact or law that the lawyer previously made.⁵ Rule 3.3(d) goes further. It is a special duty of candor, imposed because the other party is missing, and outside the ex parte setting the lawyer who says nothing false is not under the same obligation to volunteer adverse facts.⁶ A different duty, which applies in every proceeding, concerns law and not facts. The lawyer must disclose legal authority in the controlling jurisdiction that the lawyer knows to be directly adverse to the client's position and that opposing counsel has not disclosed.⁷

Hypothetical Illustration

A manufacturer's lawyer applies, under a procedure that allows the application without notice, for a temporary restraining order barring a former employee from contacting the company's customers. The lawyer knows two facts that cut in different directions. Two major customers have said they will leave, and the manufacturer waited six weeks after learning of the contacts before seeking relief. The lawyer also knows that the employee has a lawyer, who was telephoned that morning and did not respond. The lawyer tells the judge about the customers, the six-week delay, and the unanswered call, and then argues forcefully that the harm is imminent and cannot be repaired with money. The lawyer has done what the rule requires. Had the lawyer mentioned only the departing customers and kept quiet about the delay, every statement would still have been true, yet the application would have violated the duty. Truthful statements alone do not satisfy a rule that demands disclosure of material facts.

The same lawyer's conduct at a later stage of the dispute shows where the duty stops.

The only fact that changed between the two scenes is whether the other side was in the room. An exam stem that describes a lawyer leaving out an unfavorable fact invites the answer that candor was breached, and the right answer depends on the setting. In an ex parte proceeding the omission violates the duty. At a contested hearing it does not, so long as the lawyer makes no false statement and leaves no false impression.

The duty is keyed to material facts that the lawyer knows, and it reaches the merits of the relief sought as well as further material information beyond them.⁸ It overrides ordinary client confidentiality: the lawyer who chooses to proceed ex parte must reveal material information even if it would otherwise be confidential. It stops at information the lawyer reasonably believes is actually privileged, such as attorney-client communications that would not be subject to discovery or subpoena.⁹

Disclosure governs what the judge knows. It does not make the lawyer a neutral, and it places no cap on how hard the lawyer may press for the client's relief once the material facts are before the court.¹⁰ The structure protects both interests at stake. The judge receives the picture the missing opponent would otherwise have supplied, and the client keeps a lawyer who is still working for the client.

Candor in Ex Parte Proceedings

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