The Ex Parte Setting

The Ex Parte Setting

Rule 3.3(d) opens with a condition, "In an ex parte proceeding," and every duty the rule imposes depends on that condition being met.¹ An ex parte proceeding is one in which a lawyer appears before a judge or other judicial officer without the opposing party or that party's representative.² The rule's text does not ask whether the lawyer was entitled to appear alone. It assumes the appearance is authorized and prescribes what the lawyer must say once there. To use the rule correctly, you need to see first why private appearances are so rarely permitted, and then why a lawyer's obligations change in the few cases where they are.

The adversary system works because each side is present to answer the other. A judge who hears from only one side gets an account that nobody has tested, and the ruling reflects whatever that side chose to emphasize.³ Rule 3.5(b) therefore prohibits a lawyer from communicating ex parte with a judge unless law or a court order authorizes the contact.⁴

The prohibition gives way only in narrow circumstances. The standard example is a party's request for an emergency restraining order, which a lawyer may present to a judge without the opposing party or its representative present.⁵ The emergency explains the exception: if the feared harm would occur before the other side could be notified and heard, a two-sided hearing would defeat the very relief the court is asked to consider. The permission still has to come from law or a court order. A lawyer's own belief that the judge would benefit from a private word supplies nothing.

Authorization settles whether the lawyer may stand before the judge alone. It does not replace the lawyer who is missing from the other side. In an ordinary contested hearing, the lawyer remains a zealous advocate and is not generally expected to take the affirmative step of leading the court toward a conclusion adverse to the client.⁶ The baseline can tolerate that silence because the opponent is there to correct errors, answer one-sided emphasis, and supply what the first lawyer left out. At an ex parte hearing no one does that work. The judge has only the applicant's account and no independent way to know what it omits, so an omission that an opponent would have repaired can become the basis for an order against a party who never had a chance to speak. The rules respond by placing the absent adversary's burden on the lawyer who is present. Rule 3.3(d) requires that lawyer to inform the tribunal of all material facts known to the lawyer that will enable an informed decision, whether or not the facts are adverse.⁷ The special duty exists because the absence of the other party hampers the adversarial truthfinding function, and its purpose is to let the judge give the absent party fair consideration.⁸

A stem in which a lawyer speaks privately with a judge invites the reflex of testing the lawyer's candor under Rule 3.3(d). That reflex skips the threshold question of whether the contact was authorized at all.

Her candor is beside the point. The violation is the private contact itself, which Rule 3.5(b) prohibits, and a full and accurate account to the judge does not cure it. Rule 3.3(d) presupposes an appearance the law permits; it does not turn an unauthorized private visit into a proper one. She should have raised the juror issue with the prosecutor and approached the judge with both sides present. A noticed motion hearing at which opposing counsel appears and argues falls on the other side of the line. The adversary is there to correct the record, so the ordinary baseline governs, and the lawyer is not generally expected to lead the court toward a conclusion adverse to the client.⁹