August 2005
Alone With the Judge: The Heightened Duty of Candor in Ex Parte Proceedings
by Kevin Bank
It always feels strange being alone with the judge. Sometimes, it happens when you are riding up in the same elevator with her at the lunch break in a hard-fought trial, or perhaps you find yourself at the same table with her at a charity dinner. We all know that in those situations, there is not a whole lot you can talk about — the weather, the design of the new courthouse are possibilities; the cases you have pending before her are not. However, there are other times when you are alone with the judge and you are expressly permitted to talk about the case at hand. In those situations, it may be tempting for a lawyer to overreach. This article addresses the lawyer's ethical responsibilities in such ex parte proceedings. It also marks the return of a regular ethics column, to appear four times per year, giving the perspective of the Office of Disciplinary Counsel on ethical issues.
Washington Rule of Professional Conduct (RPC) 3.3(f) addresses the lack of "checks and balances" in ex parte proceedings by imposing unusually broad duties of disclosure on the lawyer. RPC 3.3(f) states that in an ex parte proceeding, a lawyer "shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse." (Emphasis added.)1 Washington's rule differs from the 1983 ABA Model Rule on which it is based in using the term "all relevant facts" rather than "all material facts." The WSBA Ethics 2003 Committee has recommended that RPC 3.3(f) be modified to eliminate this distinction.2 RPC 3.3(f) may not exclude from the duty of disclosure attorney-client confidences and secrets generally protected by RPC 1.6 (prohibiting disclosure of confidences and secrets of a client).3
1. Affirmative Misrepresentations Violate the Rule
There are few litigated Washington cases addressing RPC 3.3(f). Only one case discusses the rule in detail. In In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 48 P.3d 311 (2002), the court sanctioned a lawyer under the rule for affirmatively misrepresenting facts in arguing in support of an ex parte order to disburse funds that had been placed in the court registry. Carmick represented a client in negotiating and satisfying a past-due judgment for child support. The client's ex-wife was represented by Lewis County prosecutors. Although Carmick's client disputed the judgment amount, he agreed to deposit $11,000 in the court registry to release the child-support judgment lien. Carmick did not inform opposing counsel or the ex-wife of the $11,000 deposit his client had placed in the court registry. He eventually persuaded the ex-wife to settle her claim for $5,000.4
When the settlement agreement was signed and notarized, Carmick presented an ex parte order to the court authorizing disbursement of the funds in the registry — $5,000 to the ex-wife and $6,000 to his client. Carmick told the judge at the ex parte hearing that both the prosecutor and the ex-wife were aware of the proposed ex parte order and that they had approved it. Carmick knew that the prosecutor and the ex-wife had not seen or approved the proposed order. The court granted the order.
In imposing a 60-day suspension, the Washington State Supreme Court stated that a lawyer's duty of candor "is at its highest" when opposing counsel is not present. Such a high level of candor is necessary to "prevent judges from making decisions that differ from those they would reach in an adversarial proceeding."5
2. Misrepresentations by Omission Can Violate the Rule
Although Carmick's were affirmative misrepresentations, the rule also applies where the lawyer omits informing the court of relevant facts. In a Maryland case, the court held that an attorney representing adoptive parents had violated the rule when he presented a final decree of adoption to the court in an ex parte hearing without informing the court that the birth mother's counsel had told him the day before that the mother "was hysterical" and "wanted to know where the baby was." The Maryland court held that the conversation with counsel for the birth mother was "patently material" and that the test should be whether the judge would have entered the same order had he known of the omitted facts.6 Similarly, in stipulating to a reprimand, Washington lawyer Gimi Page admitted to violating RPC 3.3(f) by submitting a dissolution settlement to the court ex parte as "agreed" without informing the court that she had made changes to the documents after opposing counsel had signed them.7 Lawyers have also been disciplined for failing to adequately inform the court in an ex parte proceeding of a related proceeding or judgment involving the same parties.8
3. "Staying Silent" When Another Lawyer Misrepresents
A recent Connecticut case went ever further. The court disciplined an associate attorney for "staying silent" at counsel's table while a partner in the firm mischaracterized a conversation between the associate attorney and the client's counsel in another state. The court held that the nature of the proceeding — an ex parte hearing for emergency relief — was a unique circumstance that created an enhanced duty of candor. Even though the associate was not actually arguing before the judge, the court stated that he had knowledge that the partner was affirmatively misleading the court and omitting relevant facts, and thus was subject to discipline under the rule.9
4. Client Advocate or Officer of the Court?
Perhaps more than any other rule, RPC 3.3(f) requires the lawyer to play two roles that are not always easy to reconcile — both client advocate and officer of the court. The plain language of the rule and the cases interpreting it impose a broad duty of disclosure on an attorney in an ex parte proceeding. Lawyers should be aware that in such situations, their advocacy role may need to be tempered to assure that the court gets a more balanced view of the issues, even if that results in disclosure of facts adverse to the lawyer's client. The Office of Disciplinary Counsel encounters allegations of violations of RPC 3.3(f) quite frequently, indicating that lawyers may be uncertain or unaware of their enhanced obligations in ex parte proceedings. If you have questions regarding this or other rules and how they relate to your practice, call the WSBA's ethics line at 206-727-8284 or 800-945-WSBA, ext. 8284.
Kevin Bank has been a disciplinary counsel at the WSBA since 1999. He graduated from New York University Law School in 1987 and practiced in a small private firm and with the federal government.
NOTES
1 RPC 3.3(f) does not define what constitutes an "ex parte proceeding." This article will be limited to a discussion of those instances where court rules or procedures permit the moving party to present a motion, order, or argument without the other party being notified or present, such as temporary restraining orders and motions to release funds from a court registry. The rule may apply in other contexts. For instance, courts have sometimes applied the rule to motions or hearings on default judgments where the moving party's conduct in affirmatively misstating facts or withholding information is particularly egregious. See, e.g., Louisiana State Bar Ass'n v. White, 539 So. 2d 1216, 1220 (1989). The North Carolina State Bar invoked the Rule in an ethics opinion concerning an attorney representing a Social Security disability claimant in a non-adversarial hearing for benefits. The opinion states that an attorney has a duty to disclose to the administrative law judge information obtained from the claimant's treating physician opining that the client is not disabled. N.C. Eth. Op 1 (1998).
2 The Committee's proposed revisions to the RPCs have been recommended by the WSBA Board of Governors and are currently being reviewed by the Washington State Supreme Court.
3 Although Washington courts have not addressed the issue, one commentator believes that the drafter's use of the mandatory "shall," along with the absence of any language exempting client confidences and secrets from disclosure, indicates that the lawyer has an affirmative duty to disclose confidences or secrets if they are material. See Jill M. Dennis, "The Model Rules and the Search for Truth: The Origins and Applications of Model Rule 3.3(d), 8 Geo. J. Legal Ethics, 157, 174 (1994).
4 Carmick was also disciplined for violating RPC 4.2 (contact with person the lawyer knows to be represented by counsel without permission of counsel).
5 Carmick, 146 Wn.2d at 595.
6 In re Adoption No. 85365027, 71 Md. App. 362, 525 A.2d 1081 (1987).
7 In re Gimi Page (July 22, 1996).
8 See, e.g., Fitzhugh v. Committee on Professional Conduct, 308 Ark. 313, 823 S.W. 2d 896 (1992).
9 Daniels v. Alander, 268 Conn. 320, 844 A.2d 182 (2004). The associate received a public reprimand.
