When Is Disclosure of 'Bad Facts' Required?

• Author: Josephine M. Bahn
• Pages: 8-8

Published in Litigation News Volume 45, Number 3, Spring 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

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8 | S ECTION OF LITIGATION

ETHICS STRU GGLES IN THE LEGAL WORLD

thical rules pro mulgated by

the ABA and many states

require lawyers conduct-

ing ex parte procee dings

to disclose to the tribun al

material fact s necessary for that tri-

bunal to make an info rmed decision.

This creates an exceptio n to a law-

yer’s duty to zealous ly advocate for

the client and req uires disclosure of

adverse fact s in certain situations.

Now one state has cla rif‌ied what con-

stitutes an “ex parte pro ceeding” for

purposes of this r ule. ABA Section of

Litigation leade rs say clarity regard-

ing when an attorn ey is required to

disclose advers e facts to an ex parte

tribunal will resu lt in substantial jus-

tice but will also req uire careful prep-

aration by counsel .

In New York State Bar Ethics

Committee Op inion 19-1, the com-

mittee f‌irst an alyzed the meaning

of New York Rule of Profession al

Conduct 3 .3(d) regarding a lawyer’s

duty to disclose in formation at an ex

parte proceed ing. That rule requires

a lawyer to disclose al l material facts,

including thos e that may be adverse

to his or her client , in any ex parte

proceeding . Because that rule cre-

ates an exception to a lawyer ’s duty

to zealously advoca te for his or her

client, the comm ittee concluded that

“any exception to this gener al prin-

ciple, which de f‌ines the lawyer’s role

as [an] advocate, should be presu mp-

tively limite d.”

The ethics comm ittee then worked

to clarify the de f‌inition of an “ex parte

proceeding .” It rejected extreme po-

sitions that would be ove rly expan-

sive or narrow, and instea d attempt-

ed to “protect the intere sts of absent

parties and p romote the public in-

terest in enabli ng the tribunal to ren-

der an informe d and just decision.”

Looking to the ABA M odel Rules of

Professional Conduct, the committee

considered the b est interests of par-

ties not present, w ith a primary focus

When Is Disclosure of “Bad Facts”

Required?

on applications for temporary emer-

gency relief, in de termining the prop-

er scope of an ex par te proceeding.

An “ex parte procee ding” is tra-

ditionally one in w hich the adverse

party is not pr esent, did not receive

notice, and did not h ave an oppor-

tunity to be heard . The committee

ref‌ined this def‌i nition by identifying

situations that woul d not be ex parte

proceedings a nd therefore would

not require the volu ntary disclosure

of adverse fact s. First, a proceed-

ing in which both sid es are present

but one side is pro se i s not ex parte,

notwithstand ing one side’s lack of

legal counse l. Second, a proceeding

in which an intereste d party received

sucient notice b ut chose not to

appear is not an ex p arte proceeding.

Third, a procee ding in which a party

had a previous opp ortunity to present

its position so that th e tribunal hears

both sides before m aking its decision

is not an ex parte proc eeding.

Section of Litiga tion leaders ap-

plaud the committee’s clarity about

what is and is not an ex pa rte pro-

ceeding requi ring disclosure of ad-

verse facts . “The middle ground

in these situation s is the right ap-

proach,” says Emily J . Kirk, St. Louis,

MO, cochair of the S ection’s Solo &

Small Firm Committee. The commit-

tee struck a reason able balance by

“keeping its fo cus on fairness as

required by ABA Mo del Rule 3.3.

The object of th e proceeding is to

have a substantially j ust result, and

requiring the di sclosure of material

facts, even if ad verse, achieves that

goal,” opines J ohn M. Barkett, Miami,

FL, cochair of the S ection’s Ethics &

Professionalism Committee.

By taking a mode rate approach,

the committee “ac knowledged the

lack of due proces s, not the failure to

participate or i mbalance of oppos-

ing sides, in ex pa rte proceedings to

determine when the opposing po-

sition is expected to be p resented

By Josephine M . Bahn, Litigation N ews Associate Editor

by the party req uesting the relief,”

adds Tracy A. DiFil lippo, Las Vegas,

NV, cochair of the Secti on’s Pretrial

Practice & Discover y Committee.

This approach mirrors the one

taken in New Jers ey, which def‌ines

an ex parte heari ng to include only

emergency applications for tem-

porary relie f where one of the par-

ties has not received a ny notice of

the hearing. Idaho, Massachusetts,

and Connecticut, by contrast, take

a more expansive app roach, requir-

ing the disclosur e of adverse facts in

any proceeding wh ere only one side

is present beca use of a perceived im-

balance and unfairness.

Lawyers are train ed to zealously

advocate on their cl ient’s behalf and

tend to shy from adverse f acts that

can impact th eir case. Thus, ex parte

situations requi ring the disclosure of

such adverse fac ts can be dicult to

navigate. “Couns el will now have to

show up to ex parte hear ings know-

ing both sides of the l aw and facts.

Lawyers need to b e prepared to dis-

close those advers e facts, but to pres-

ent them in a way that bes t helps their

client to try and de al with the bad

facts and the b ad law,” oers Kirk.

Section lead ers encourage law-

yers to ask for help if th ey are unsure

about whether a p articular hearing is

ex parte and wheth er they must dis-

close adverse fa cts. “When in doubt,

reach out to your state ba r ethics ho-

tline; you can always req uest an eth-

ics opinion fro m them on whether

you need to disclose a ny facts during

these emergency hearings,” advises

Barkett. “T he ultimate rule is fairness

and justice, an d attorneys should dis-

close with that in mind ,” he notes.