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Prof Responsibility • Candor
PR#074
Legal Definition
An ex parte proceeding is a legal term that refers to a motion, hearing, or order that is granted for the benefit of one party only, without the usual notice or opportunity to respond from the other party. The term comes from the Latin phrase "ex parte," which means "on one side only" or "by or for one party". Since the other party is not present, under the Duty of Candor, a lawyer must reveal both the good and bad aspects of their case.
Plain English Explanation
An ex parte proceeding is when only one side gets to present their case to a judge, without the other side being present or getting a chance to respond. It comes from Latin meaning "for one party only". This type of proceeding is unusual in our legal system, which normally gives both sides a chance to argue their case.
Ex parte proceedings are sometimes necessary in emergencies or when notifying the other side could defeat the purpose. For example, a victim of domestic violence might seek an ex parte restraining order to get immediate protection. Or a company might request an ex parte order to seize evidence they think the other side will destroy if given advance notice.
The tricky part is that the judge only hears one side of the story in an ex parte proceeding. Without the other side there to argue against it, the judge has to rely solely on what the present party says. This creates a risk of the judge getting a skewed or incomplete picture.
That's where a lawyer's duty of candor comes in. In a normal proceeding, lawyers are supposed to be zealous advocates for their clients. But in an ex parte proceeding, lawyers have a special duty to give the judge a fair and complete picture. They need to present the good and bad aspects of their case, almost as if they were a neutral party. Lawyers can't just cherry-pick favorable facts - they have to disclose any significant unfavorable information too.
Ex parte proceedings are sometimes necessary in emergencies or when notifying the other side could defeat the purpose. For example, a victim of domestic violence might seek an ex parte restraining order to get immediate protection. Or a company might request an ex parte order to seize evidence they think the other side will destroy if given advance notice.
The tricky part is that the judge only hears one side of the story in an ex parte proceeding. Without the other side there to argue against it, the judge has to rely solely on what the present party says. This creates a risk of the judge getting a skewed or incomplete picture.
That's where a lawyer's duty of candor comes in. In a normal proceeding, lawyers are supposed to be zealous advocates for their clients. But in an ex parte proceeding, lawyers have a special duty to give the judge a fair and complete picture. They need to present the good and bad aspects of their case, almost as if they were a neutral party. Lawyers can't just cherry-pick favorable facts - they have to disclose any significant unfavorable information too.
Hypothetical
Hypo 1: Sam, a victim of domestic violence, seeks Bob's help to obtain an emergency restraining order against his abusive partner. Sam shows Bob photos of recent injuries and text messages containing threats. Bob files for an ex parte temporary restraining order, presenting this evidence to the judge. However, Bob also discloses that Sam had previously sought and then voluntarily dismissed a restraining order against the same partner six months ago. Result: Bob has properly fulfilled his duty of candor in this ex parte proceeding. He presented the compelling evidence of current abuse, but also disclosed the potentially relevant information about the previous dismissed order. This gives the judge a complete picture to decide whether an emergency order is warranted, even though the previous dismissal might weaken Sam's case.
Hypo 2: Sam is going through a contentious divorce and suspects his spouse is planning to hide or transfer valuable assets. Sam asks Bob to seek an emergency ex parte order to freeze all marital assets. Bob quickly files the motion, detailing Sam's suspicions and the potential irreparable harm if assets are dissipated. However, Bob also informs the judge that he has not been able to independently verify Sam's claims about the spouse's intentions, and that the spouse's lawyer had previously denied any plans to transfer assets. Result: Bob has appropriately balanced advocacy and candor here. He presented the key facts supporting the emergency request, but also made sure to note the limitations of the information and the opposing side's stance. This fulfills the duty to give the judge a fair basis for the ex parte decision, even in the absence of the other party.
Hypo 3: Sam is arrested for violating a restraining order. At his first court appearance, Sam tells Bob that he only contacted the protected person because of a family emergency involving their child. Bob requests an ex parte hearing to argue for Sam's immediate release on bail. In the hearing, Bob zealously argues that Sam has no prior violations and strong community ties. However, Bob does not mention the alleged family emergency, as he hasn't had time to verify the claim or its relevance to the restraining order violation. Result: This is an appropriate approach by Bob. The duty of candor doesn't require disclosing every unverified claim a client makes, especially in a criminal context where the client has a right against self-incrimination. Bob stuck to presenting verified facts to the judge, rather than relaying a potentially self-serving story he couldn't yet stand behind. This fulfills the spirit of giving the judge a fair basis for the ex parte bail decision while protecting his client's rights.
Hypo 2: Sam is going through a contentious divorce and suspects his spouse is planning to hide or transfer valuable assets. Sam asks Bob to seek an emergency ex parte order to freeze all marital assets. Bob quickly files the motion, detailing Sam's suspicions and the potential irreparable harm if assets are dissipated. However, Bob also informs the judge that he has not been able to independently verify Sam's claims about the spouse's intentions, and that the spouse's lawyer had previously denied any plans to transfer assets. Result: Bob has appropriately balanced advocacy and candor here. He presented the key facts supporting the emergency request, but also made sure to note the limitations of the information and the opposing side's stance. This fulfills the duty to give the judge a fair basis for the ex parte decision, even in the absence of the other party.
Hypo 3: Sam is arrested for violating a restraining order. At his first court appearance, Sam tells Bob that he only contacted the protected person because of a family emergency involving their child. Bob requests an ex parte hearing to argue for Sam's immediate release on bail. In the hearing, Bob zealously argues that Sam has no prior violations and strong community ties. However, Bob does not mention the alleged family emergency, as he hasn't had time to verify the claim or its relevance to the restraining order violation. Result: This is an appropriate approach by Bob. The duty of candor doesn't require disclosing every unverified claim a client makes, especially in a criminal context where the client has a right against self-incrimination. Bob stuck to presenting verified facts to the judge, rather than relaying a potentially self-serving story he couldn't yet stand behind. This fulfills the spirit of giving the judge a fair basis for the ex parte bail decision while protecting his client's rights.
Visual Aids
Related Concepts
According to the Duty Not to Contact Represented Parties, which individuals within an organization must an attorney obtain permission from the organization's lawyer before contacting directly?
Can lawyers compensate witnesses?
How do the rules in California differ regarding how a lawyer balances their Duty of Candor with their criminal defendant client's right to testify if they believe the client intends to lie?
How must a lawyer balance their Duty of Candor with their criminal defendant client's right to testify if they believe they intend to lie?
In California, can an attorney disclose information to set the record straight if one of their witnesses intends to lie?
What are the 9 Affirmative Duties of a Public Prosecutor?
What is the Duty Not to Contact Represented Parties?
What is the Duty of Candor?
What is the Duty to Produce Evidence?
What must a lawyer do if they know that their witness intends to lie in their testimony?
