Advocacy After Disclosure

Advocacy After Disclosure

Rule 3.3(d) requires a lawyer in an ex parte proceeding to “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 Read the sentence for its subject matter. It speaks of facts: what the lawyer knows, what is material, and what the judge needs in order to decide with full information. It does not tell the lawyer how to characterize those facts, and it does not ask the lawyer to argue the absent party’s side. The rule therefore governs the content of the record, and the lawyer remains an advocate. After every material fact is before the judge, counsel may still press the client’s case for the relief sought.²

The rule fills a specific gap. The judge hears one side only, so the appearing lawyer must supply the facts that would give the judge “a better understanding of the underlying facts so as to accord the absent party fair consideration.” All material facts must be disclosed, adverse ones included, lest the judge be deceived about the genuine nature of the matter.³ A judge can discount an argument once the facts are known, because the judge can see it for what it is, a one-sided reading of a complete record. A judge cannot discount a fact the judge never learns. The rule therefore acts where the judge is helpless, the factual record, and leaves alone the place where the judge can guard against overreach, the argument.

The comment to Rule 3.3 draws the same line. An advocate must present the client’s case with persuasive force, and that duty is qualified by the duty of candor to the tribunal. A lawyer in an adversary proceeding need not present a disinterested exposition of the law or vouch for the evidence submitted.⁴ The ex parte setting is where zealous advocacy must be suppressed and candid disclosure must follow when the lawyer makes contact with an adjudicator without the other side present.⁵ What the rule demands is disclosure, and it does not demand neutrality.

An exam stem will often describe a lawyer who argues an ex parte application with great force and ask whether the duty was breached. The answer turns on what the lawyer put on the record, and the intensity of the argument has no bearing on it.

The two lawyers show that disclosure and argument do different jobs, and neither can stand in for the other. Disclosure puts facts on the record, and argument tells the judge what to make of them. The first lawyer was free to contend that the delay is explainable or beside the point. The second lawyer’s persuasiveness could not repair the omission, because the judge was weighing that argument against an incomplete record with nobody present to say so.

Vigor also has a ceiling. The first lawyer could argue that the delay was reasonable but could not have told the judge that no delay occurred, because a lawyer must not allow the tribunal to be misled by false statements of law or fact or by evidence the lawyer knows to be false.⁶ The sequence is therefore fixed. The lawyer first discloses the material facts, adverse ones included, then argues for the inferences the client wants drawn from them, and at no point misstates anything.