Candor in an Ex Parte Proceeding

I’ve not once had this arise in 20 years of reviewing disciplinary complaints.  Maybe, however, it’s because you can’t complain about something you don’t know.

Here’s the issue: a lawyer’s duty of candor in an ex parte proceeding.

Like apps, there’s a rule for that.  It’s Rule 3.3(d).

Generally, it’s not a lawyer’s job to make the other side’s case.  Yes, rule 3.3(a)(2) prohibits a lawyer from knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”  However, in most adversary proceedings, the rules do not require a lawyer to disclose or introduce facts that help the adversary more than the client.

Rule 3.3(d) makes clear that an “ex parte proceeding” is a bit different.   Here’s the rule:

  • “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

Comment [14] addresses the rule:

  • “Ordinarily an advocate has the limited responsibility of presenting one side of the matter that a tribunal should consider in reaching an informed decision; the conflicting position is expected to be presented by the opposing party.  However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates.  The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to afford the absent party just consideration.  The lawyer for the represented party has the correlative duty to make disclosures of material fact known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.”

In 1999, Vermont replaced the Code of Professional Responsibility with the Rules of Professional Conduct.  At the time, Rule 3.3(d) was brand new. There was no corollary in the old Code.

Now, many of you likely never participate in ex parte proceedings.  If so, that’s fine. I won’t be offended if you stop, or have already stopped, reading. However, this blog tracks exactly how far you read.  And while I won’t be offended, I won’t forget.

Just kidding!  This blog tracks no such thing!!!

Back to my post.

The rules do not define “ex parte proceeding.”  Other than the mention of applications for temporary restraining orders in Comment [14], there’s no guidance as  to when Rule 3.3(d) applies.

Last month, the New York City Bar Association provided guidance in the form of Formal Opinion 2019-01.  New York’s 3.3(d) and Comment [14] track Vermont’s verbatim.  So, while we’re not bound by the NYCBA opinion, it’s helpful.  Here’s the summary.

  • Rule 3.3(d) applies in limited circumstances.
  • It does not apply when a pro se party is absent by choice.
  • It applies to proceedings in which only one side receives an opportunity to present its case.
  • It applies to applications for temporary restraining order when one side has not been provided with notice or an opportunity to appear & be heard on the application.
  • It applies to proceedings in which “interested parties are not permitted to receive notice and participate,” for instance, search warrant applications.

The opinion notes that there are two ways to define an “ex parte proceeding.” Narrowly, only applying to emergency applications for temporary relief.  Or, more broadly, to any matter in which, for whatever reason, one side is absent.  The opinion rejects each extreme and settles on middle ground.  Specifically concluding that:

  • “The rule applies only to proceedings in which, for practical or legal reasons, only one side has an opportunity to present its case.”

Again, I’ve never dealt with this issue in the form of a complaint or an ethics inquiry. However, I’ve practiced under the rule.

I was disciplinary counsel from 2000 – 2012.  In Vermont, upon completing an investigation and concluding that a lawyer violated the rules, disciplinary counsel is not free simply to charge the lawyer with misconduct.  Rather, by rule, before filing a formal petition of misconduct, disciplinary counsel’s charging decision must be reviewed for probable cause by a hearing panel of the Professional Responsibility Board.  Typically, this involves an affidavit summarizing the investigation and a memorandum of law outlining the rule violations.

I filed dozens of probable cause requests. The process is definitely “ex parte.”  That is, the subject lawyer has no right to participate and is not invited to participate.  Thinking back to my days as the prosecutor, I’m not sure I even knew about Rule 3.3(d), even though it clearly applied to me as I filed the pc requests.  Thankfully, my practice was to include a copy of the lawyer’s response to the disciplinary complaint with each pc request that I filed.

Phew!

See the source image

Don’t be an “Empty Head”

When I was a kid, my head was so big that baseball hats and football helmets wouldn’t fit.  So, one of my best friend’s brothers always called me “Mr. Potato Head.”

I didn’t love the name.

See the source image

But maybe it’s better than having a federal court reprimand me for “errors made with an empty head.”

As reported by Bloomberg’s Big Law Business, the Court of Appeals for the 7th Circuit recently did exactly that to an Illinois lawyer. The order is here.

The lawyer’s troubles began when the appendix to a brief she filed included material that should have been redacted.  Opposing counsel notified the court.  The court ordered the lawyer to file a redacted appendix.

She did.  Along with a brief that included “substantial changes . . . altering both propositions of fact and law.”

Opposing counsel asked for an extension of time to reply to the new propositions.  The court granted the extension, but ordered the lawyer to “file a new brief, identical to the original, making only the changes required to redact information in the appendix.”

Seems clear enough. So, lawyer filed a third brief.

As the appellate court noted, “yet again, changes had been made.”  The new filing “did not match either” of the first two.

The court ordered the lawyer to file a new brief that matched the original and to show cause why she should not be disciplined.

Lawyer argued that the original order to redact the appendix implied that she could change the brief that it accompanied.   Per the court, “we accept her assertion that she believed that she could do so, but errors made with an empty head are hard to excuse.”

Ouch.

The court added that “making an error once is bad; making it twice in a row . . . is unfathomable.”

But for the fact that the court reprimanded the lawyer instead of imposing a more serious sanction, this might have qualified for Was That Wrong?

Don’t be an empty head.