What counts as an "ex parte proceeding" that triggers a lawyer's duty to disclose adverse facts to the court under Rule 3.3(d)?

Plain-English summary

The opinion addresses Rule 3.3(d), which provides that in an "ex parte proceeding" a 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 those facts are adverse. The rule does not define "ex parte proceeding," and the opinion supplies a reading.

Because the disclosure obligation is a significant departure from the advocate's ordinary, one-sided role, the opinion concludes the obligation applies only in limited circumstances. It concludes the rule does not apply to proceedings in which an opposing party appears pro se or is absent by choice. It concludes the rule applies to proceedings in which, for practical or legal reasons, only one side has an opportunity to present its case. The opinion gives two examples: an application for a temporary restraining order where the adverse party has not been given notice, an opportunity to be heard, and time to appear; and proceedings such as search-warrant applications where interested parties are not permitted to receive notice and participate.

The opinion notes the disclosure obligation under Rule 3.3(d) is distinct from the Rule 3.3(a)(2) duty to disclose controlling adverse legal authority, which applies to all proceedings regardless of whether they are ex parte.

In practice

Under this opinion, as the New York rule stood at the time, the trigger for the heightened candor duty is structural, not just the other side's absence. The opinion holds that Rule 3.3(d) reaches proceedings where only one side can, for practical or legal reasons, present its case, and gives the no-notice TRO and the search-warrant application as paradigm examples. The opinion holds that a proceeding is not ex parte for this purpose merely because an opponent who could appear is absent by choice or proceeds pro se.

Common questions

Q: Does Rule 3.3(d) make me disclose facts that hurt my client?

A: In a true ex parte proceeding, yes. The opinion concludes Rule 3.3(d) requires a lawyer to inform the tribunal of all material facts, including adverse facts, that will enable the tribunal to make an informed decision.

Q: Is every proceeding where the other side does not show up "ex parte"?

A: No. The opinion concludes the rule does not apply where an opposing party appears pro se or is absent by choice; it applies only where, for practical or legal reasons, only one side has an opportunity to present its case.

Q: What are examples of proceedings that trigger the duty?

A: A no-notice TRO application and a search-warrant application. The opinion identifies an application for a temporary restraining order where the adverse party lacked notice and an opportunity to be heard, and proceedings such as search-warrant applications where interested parties cannot receive notice and participate.

Q: Does the duty to cite adverse legal authority depend on whether the proceeding is ex parte?

A: No. The opinion notes the Rule 3.3(a)(2) duty to disclose controlling legal authority directly adverse to the client and not disclosed by opposing counsel applies to all proceedings, regardless of whether they are ex parte.

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 3.3(d) (candor toward the tribunal in an ex parte proceeding, analogous to Model Rule 3.3(d)) and contrasts it with Rule 3.3(a)(2) (disclosure of controlling adverse legal authority). The Model Rule analogue is Model Rule 3.3.

Citations and references

Rules of Professional Conduct:

• NY RPC 3.3(d) (disclosure of material facts in an ex parte proceeding)
• NY RPC 3.3(a)(2) (disclosure of controlling adverse legal authority)
• MR 3.3 (Model Rule analogue)

See also

• ABA Formal Op. 98-412: Disclosure when a client violates a court order
• ABA Formal Op. 07-446: Undisclosed assistance to pro se litigants

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2019-1-defining-ex-parte-proceeding-under-rule-3-3d/