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December 24, 2019 Top Story

When Is Disclosure of "Bad Facts" Required?

Committee clarifies meaning of "ex parte proceedings" triggering disclosure

By Josephine M. Bahn

Ethical rules promulgated by the ABA and many states require lawyers conducting ex parte proceedings to disclose to the tribunal material facts necessary for that tribunal to make an informed decision. This creates an exception to a lawyer’s duty to zealously advocate for the client and requires disclosure of adverse facts in certain situations. Now, one state has clarified what constitutes an “ex parte proceeding” for purposes of this rule. ABA Section of Litigation leaders say clarity regarding when an attorney is required to disclose adverse facts to an ex parte tribunal will result in substantial justice, but will also require careful preparation by counsel.

Guidance clarifies when attorneys need to disclose adverse facts about their clients in ex parte proceedings

Guidance clarifies when attorneys need to disclose adverse facts about their clients in ex parte proceedings

iStockphoto by Getty Images

An Ex Parte Proceeding or Not?

In New York State Bar Ethics Committee Opinion, Op. 19-1, the committee first analyzed the meaning of New York Rule of Professional Conduct 3.3(d) regarding a lawyer’s duty to disclose information at an ex parte proceeding. That rule requires a lawyer to disclose all material facts, including those which may be adverse to his or her client, in any ex parte proceeding. Because that rule creates an exception to a lawyer’s duty to zealously advocate for his or her client, the committee concluded that “any exception to this general principle, which defines the lawyer’s role as [an] advocate, should be presumptively limited.”

The ethics committee then worked to clarify the definition of an “ex parte proceeding.” It rejected extreme positions that would be overly expansive or narrow, and instead attempted to “protect the interests of absent parties and promote the public interest in enabling the tribunal to render an informed and just decision.” Looking to the ABA Model Rules of Professional Conduct, the committee considered the best interests of parties not present, with a primary focus on applications for temporary emergency relief, in determining the proper scope of an ex parte proceeding.

An “ex parte proceeding” is traditionally one in which the adverse party is not present, did not receive notice, and did not have an opportunity to be heard. The committee refined this definition by identifying situations that would not be ex parte proceedings and therefore would not require the voluntary disclosure of adverse facts. First, a proceeding in which both sides are present, but one side is pro se, is not ex parte, notwithstanding one side’s lack of legal counsel. Second, a proceeding in which an interested party received sufficient notice, but chose not to appear, is not an ex parte proceeding. Third, a proceeding in which a party had a previous opportunity to present its position, so that the tribunal hears both sides before making its decision, is not an ex parte proceeding.

Protecting Lawyer and Client Interests

Section of Litigation leaders applaud the committee’s clarity about what is and is not an ex parte proceeding requiring disclosure of adverse facts. “The middle ground in these situations is the right approach,” says Emily J. Kirk, St. Louis, MO, cochair of the Section’s Solo & Small Firm Committee. The committee struck a reasonable balance by “keeping its focus on fairness as required by ABA Model Rule 3.3. The object of the proceeding is to have a substantially just result, and requiring the disclosure of material facts, even if adverse, achieves that goal,” opines John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee.

By taking a moderate approach, the committee “acknowledged the lack of due process, not the failure to participate or imbalance of opposing sides, in ex parte proceedings to determine when the opposing position is expected to be presented by the party requesting the relief,” opines Tracy A. DiFillippo, Las Vegas, NV, cochair of the Section’s Pretrial Practice & Discovery Committee.

This approach mirrors the one taken in New Jersey, which defines an ex parte hearing to include only emergency applications for temporary relief where one of the parties has not received any notice of the hearing. Idaho, Massachusetts, and Connecticut, by contrast, take a more expansive approach, requiring the disclosure of adverse facts in any proceeding where only one side is present, because of a perceived imbalance and unfairness.

Be Ready to Argue Both Sides

Lawyers are trained to zealously advocate on their client’s behalf and tend to shy from adverse facts that can impact their case. Thus, ex parte situations requiring the disclosure of such adverse facts can be difficult to navigate. “Counsel will now have to show up to ex parte hearings knowing both sides of the law and facts. Lawyers need to be prepared to disclose those adverse facts, but to present them in a way that best helps your client to try and deal with the bad facts and the bad law,” suggests Kirk.

Section leaders encourage lawyers to ask for help if they are unsure about whether a particular hearing is ex parte and whether they must disclose adverse facts. “When in doubt, reach out to your state bar ethics hotline; you can always request an ethics opinion from them on whether you need to disclose any facts during these emergency hearings,” says Barkett. “The ultimate rule is fairness and justice, and attorneys should disclose with that in mind,” he notes.


Josephine M. Bahn is a contributing editor for Litigation News.

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