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

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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.”

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