MBE Rules · Professional Responsibility
Candor in Ex Parte Proceedings
Cal. Rule 3.3(d)
The rule
In ex parte proceedings a lawyer must inform the tribunal of all material facts known, including adverse facts, enabling an informed decision despite the absence of the adversary.
In plain English
In ex parte proceedings, where only one party is present, lawyers have a duty to disclose all relevant facts to the tribunal, even if those facts are unfavorable to their case. This obligation ensures that the tribunal can make a fair and informed decision in the absence of the opposing party.
Worked example
A lawyer seeks a temporary restraining order against a neighbor, but fails to mention that their client previously had a restraining order against them for harassment. The court grants the order based on the incomplete information. When the neighbor later learns of this fact, the order may be challenged due to the lawyer's lack of candor.
Memory hook
In ex parte, full disclosure is the lawyer's duty, not a choice.
The trap
Exams may present scenarios where a lawyer omits adverse facts, leading students to overlook the importance of full disclosure in ex parte situations. Students might mistakenly think that only favorable facts need to be presented.
How examiners test it
Questions often involve a lawyer's failure to disclose critical adverse information in an ex parte proceeding, testing candidates on their understanding of the duty of candor.
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More Professional Responsibility rules
- Duty of Confidentiality · Cal. Bus. & Prof. Code § 6068(e); Rule 1.6
- Client Trust Account — IOLTA · Cal. Rules of Prof. Conduct 1.15
- Duty to Report Misconduct · Cal. Rules of Prof. Conduct 8.3
- Unconscionable Fees · Cal. Rule 1.5
- Fee Division Among Lawyers · Cal. Rule 1.5.1
- Compensation from Third Parties · Cal. Rule 1.8.6