Ethics-Governance: Article: http://www.wsba.org/media/publications/barnews/ethics+august.htm

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http://www.wsba.org/media/publications/barnews/ethics+august.htm Alone With the Judge: The Heightened Duty of Candor in Ex Parte Proceedings by Kevin Bank. It always feels strange being alone with the judge. Sometimes, it happens when you are riding up in the same elevator with her at the lunch break in a hard-fought trial, or perhaps you find yourself at the same table with her at a charity dinner. We all know that in those situations, there is not a whole lot you can talk about — the weather, the design of the new courthouse are possibilities; the cases you have pending before her are not. However, there are other times when you are alone with the judge and you are expressly permitted to talk about the case at hand. In those situations, it may be tempting for a lawyer to overreach. This article addresses the lawyer's ethical responsibilities in such ex parte proceedings. It also marks the return of a regular ethics column, to appear four times per year, giving the perspective of the Office of Disciplinary Counsel on ethical issues. Washington Rule of Professional Conduct (RPC) 3.3(f) addresses the lack of "checks and balances" in ex parte proceedings by imposing unusually broad duties of disclosure on the lawyer. RPC 3.3(f) states that in an ex parte proceeding, a lawyer "shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse." (Emphasis added.)1 Washington's rule differs from the 1983 ABA Model Rule on which it is based in using the term "all relevant facts" rather than "all material facts." The WSBA Ethics 2003 Committee has recommended that RPC 3.3(f) be modified to eliminate this distinction.2 RPC 3.3(f) may not exclude from the duty of disclosure attorney-client confidences and secrets generally protected by RPC 1.6 (prohibiting disclosure of confidences and secrets of a client).3 1. Full Article: http://www.wsba.org/media/publications/barnews/ethics+august.htm


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