The Duty to Inform the Tribunal

Rule 3.3(d) states the duty in one sentence: "In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse."¹ The preceding section explained when that sentence applies: in an authorized appearance before a judge while the opposing party is absent. This section asks what the sentence demands once the lawyer stands before the judge alone. Three of its phrases work as separate limits, and each answers a different question about how much the lawyer must say.

The rule does the work of the missing adversary. In a contested hearing, opposing counsel tests the applicant's account, points to what was left out, and gives the judge the other side. When that lawyer is absent, nobody can correct the record, so the rule hands part of the correcting job to the only lawyer present. Its standard is an informed decision by the tribunal, and that standard explains both the breadth of the duty and its boundaries. The lawyer owes the judge what the judge needs to rule well. That means facts that are material and facts the lawyer actually knows, and it does not mean everything that might conceivably bear on the dispute.

The three limits are these:

The first concerns content: which facts count as material, and why the rule expressly includes those that hurt the client.
The second concerns procedural status: whether a judge asked to act against someone who is not present must be told where that person stands in the case.
The third concerns knowledge: what the lawyer must know, and how hard the lawyer must look.

Each limit rests on the same operative sentence, and whether a lawyer's ex parte presentation satisfied the rule usually turns on all three.

Material Facts, Including Adverse Ones

Rule 3.3(d) draws two boundaries in a single sentence. The lawyer must inform the tribunal of "all material facts known to the lawyer that will enable the tribunal to make an informed decision," and the duty holds "whether or not the facts are adverse."² The first half measures the duty by the decision the judge must make. The second half says the client's interest does not shrink that measure. Together they reverse the usual arrangement, in which an advocate chooses the facts to present and leaves the rest for the other side to find. In an authorized ex parte hearing no other side is in the room, so the facts it would have raised must come from the lawyer or never reach the judge.

When the contact is authorized, the lawyer must give the judge the full flavor of the matter.³ A complete disclosure has four parts:

identifying every person the requested relief would affect, including the absent party;
describing the nature of the dispute;
outlining the circumstances that led to the dispute; and
fairly summarizing the factual narrative the opposing party would likely offer.

Together the four parts let the judge see the matter whole rather than from one side. The fourth is the most demanding, because it asks the lawyer to anticipate the other side's version of the facts and put it on the record. It is a summary of facts the judge needs, and the lawyer is not asked to argue the absent party's case. The judge should not leave with a story the absent party would contest the moment it was heard.

The express inclusion of adverse facts follows from what the absent party cannot do. A party who is not in the room cannot rebut anything the lawyer omits. If the lawyer could present only favorable facts, the judge would be deceived about the genuine nature of the matter and could not give the absent party fair consideration.⁴ The silence the ordinary baseline tolerates, because an opposing lawyer can be expected to find and use what one side leaves unsaid, becomes a violation here. The requirement puts into the record what the missing opponent would have supplied, which is why harm to the client has nothing to do with whether a fact must be disclosed.

Two limits keep the duty workable. The first is knowledge: the rule reaches facts "known to the lawyer," and a later part of this section takes up what that demands of the lawyer's own inquiry. The second is materiality, which Comment 14 states by requiring the lawyer to "make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision."⁵ The decision before the judge is whether to grant the relief requested, so a fact is material when it bears on that decision, as the urgency of the claimed harm or the strength of the claim does. The reasonable-belief wording supplies an objective yardstick: it asks what a reasonable lawyer would see as necessary to an informed ruling, and it does not ask whether disclosure helps or hurts the client. Without that limit, the duty would grow into a duty to confess everything about the client, which no judge needs in order to rule well.

An exam stem built on this rule usually asks which of several things the lawyer knows must be said. The answer sorts the facts by their bearing on the decision, and the sting of a fact is irrelevant.

The unrelated dealings might damage the client as much as the delay would, so harm to the client cannot be what separates the facts the lawyer must disclose from the one the lawyer need not. The delay and the defendant's explanation must be disclosed because they bear on the question the judge is deciding, and the unrelated dealings need not be because they do not. Students go wrong in two directions here. Some treat an unfavorable fact as the client's business and stay silent, and others read the rule as demanding a full confession. The rule requires neither.

Procedural Status and Notice

Rule 3.3(d) speaks of "all material facts known to the lawyer that will enable the tribunal to make an informed decision," and nothing in that language limits materiality to the merits of the claim.⁷ The treatise makes the same point: in addition to the material facts about the underlying merits, the lawyer must also disclose further material information.⁸ A fact is material when it bears on a decision the judge has to make, and an ex parte judge makes two decisions rather than one. The first is whether the requested relief is warranted. The second exists only because the other side is absent: whether to decide the matter without that side at all. Procedural facts feed the second decision. The two that matter most are whether the absent party is represented by counsel and whether that counsel received reasonable advance notice of the proceeding.

These facts matter because of why ex parte hearings are tolerated at all. An ex parte appearance is an exception that other law must authorize, and the usual justification is that the other side cannot be heard in time to matter. Whether that justification holds in a given case is something the applicant's lawyer is likely to know and the judge is not. If the opposing party has a lawyer who could have been reached by telephone that morning, the claimed urgency may not require proceeding alone, and the judge might prefer a contested hearing on short notice. A judge who is not told will assume the absence was unavoidable, and nobody in the room can say otherwise. The two facts do different work. Representation tells the judge whether someone stands ready to speak for the absent party, and notice tells the judge whether that person had a fair chance to appear. Without both, the judge cannot tell an absence caused by the emergency from an absence caused by the applicant's choice.

The duty here is one of disclosure. Rule 3.3(d) does not say when notice must be given, because the authority that permits the ex parte appearance answers that question. What the rule guarantees is that the judge has the facts needed to decide whether to go forward.

Consider first a lawyer who gives a thorough merits presentation and conceals everything about the other side's status.

Now consider a second lawyer in the same posture, who telephones opposing counsel two hours before the hearing, gives the time and place, and is told that counsel will not attend.

The violation in the first scene lies in the silence about notice. A lawyer who told the judge candidly that no notice had been given, and explained why, would have met the disclosure duty and left the judge to decide whether to proceed. Whether such an appearance was authorized at all is the separate threshold question from the preceding section. An exam stem will often pair a complete merits presentation with one buried line about the other side's counsel. The usual error is to treat the merits presentation as satisfying the rule because the lawyer said nothing false.

Knowledge and Reasonable Investigation

Rule 3.3(d) requires the lawyer to inform the tribunal of all material facts "known to the lawyer," and those three words fix how much the lawyer must say.¹⁰ The duty attaches to the facts the lawyer has, a narrower set than the facts that exist. The choice follows from the rule's purpose. The rule stands in for the absent adversary by making the applicant's lawyer put before the judge what the opponent would have raised. A duty to dig up the other side's evidence would go further and make the applicant's lawyer the opponent's investigator, and no lawyer can prove that no harmful fact exists anywhere. Tying the duty to knowledge keeps it something the lawyer can perform.

Three propositions give the phrase its content.¹¹ First, the lawyer is not generally obliged to actively seek out evidence that would harm the client's case. Second, the lawyer may not withhold critical information that lies within the lawyer's personal knowledge. Third, the lawyer may not remain in willful ignorance of obvious circumstances. The second and third propositions exist because of the first. If knowledge were measured only by what the lawyer chose to look at, a lawyer could escape the duty by declining to look, and the freedom from searching would become a way around the rule. The law therefore separates two situations that can feel alike from the inside: leaving unsearched a fact with no apparent existence, and refusing to look at something whose existence is plain.

A different lawyer, preparing a similar application, hears a secondhand rumor that the opponent once told a customer the disputed territory was free for anyone to use. After reasonable inquiry the lawyer has found no document, no witness, and nothing in the file suggesting the statement was ever made. This lawyer need not go hunting for it, because nothing the lawyer has seen makes its existence apparent. What separates this lawyer from the one with the carton is not how damaging the fact might be. It is whether the lawyer's own materials and circumstances make the fact's existence obvious. The carton does, and the rumor does not.

The third proposition covers the case in which preparation leaves the picture unsettled. If the lawyer's factual understanding remains cloudy despite reasonable prior investigation, the confused state of the case should be forthrightly acknowledged, because the judge may conclude that such a "muddled situation call[s] for a contested hearing."¹² The reason lies in who can act on the uncertainty. The lawyer cannot resolve it alone and has no adversary present to resolve it, but the judge can weigh the gap and, if it matters, direct that the other side be brought in. A lawyer who smooths over the gap with a confident, finished-sounding presentation gives the judge the false sense of completeness that the disclosure duty exists to prevent, and removes the judge's chance to call for a contested hearing. Acknowledging the uncertainty does not mean guessing at the missing facts or presenting speculation as fact. It means telling the judge honestly that the lawyer's own picture is incomplete.

Students tend to err in one of two opposite directions here. Some read the rule as requiring a full investigation of the opponent's side before any ex parte appearance, which the knowledge limit forecloses. Others treat "I did not know" as a complete answer whenever the lawyer can point to a document never read or a question never asked, which the willful-ignorance limit forecloses. The sound analysis asks what the lawyer actually knows, whether obvious circumstances were deliberately avoided, and whether anything remains unclear after reasonable investigation that the judge ought to be told about.