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Negotiating Within Ethical Limitations

by Madelyn A. Enright, Esquire of Murtaugh Meyer Nelson & Treglia, LLP

Definitive ethical guidance for today’s complex legal system is at times difficult to find, but the overriding standard is clear: an attorney has an obligation to maintain the highest standards of ethical conduct. How one applies this requirement to successful negotiating is not at all clear.i

Brief History

A brief review of the history of the rules and guidelines adopted by various jurisdictions in which we all work sheds some light on the difficulties in determining the standards that govern a lawyer’s conduct during negotiations.

ABA Rules

In 1924, the American Bar Association’s (ABA) Committee on Judicial Ethics was chaired by Chief Justice William Howard Taft, who as chair led the committee in drafting the Canons of Judicial Ethics, which were adopted at the 1924 ABA annual meeting. The chief justice was heard to remark that the association’s adoption of the Canons “was the outstanding feature of the meeting.” ii

Model Code

The Canons of Judicial Ethics were the guiding light for ethics in the law until 1970, when the ABA promulgated the Model Code of Professional Responsibility. It was soon adopted almost unanimously by various states. Today, the Model Code of Professional Responsibility has been adopted to some extent in every state in the United States. This creates at least the appearance of uniformity of professional responsibility throughout the country.iii

1983 Model Rules

In 1977, the ABA re-evaluated the continuing usefulness of the Model Code and decided a new and supplemental guide was in order. Accordingly, the ABA adopted the Model Rules of Professional Conduct in 1983. Many states adopted these rules in turn, but made various changes. See, Peter Co. v. Blonquest, 132 F.R.D. 220, 225 N.8 (D.Minn. 1990).iv

Restatement of Law

In 1997, the American Law Institute approved a portion of the Restatement of the Law Governing Lawyers. There are four approved chapters out of the original nine planned, but only chapter eight deals with ethics.v

Ethics 2000

In 2002, the ABA’s Ethics 2000 Commission finished its revision of the Model Rules with little change occurring to the rules.vi

Clearly, there is a plethora of information available to lawyers who are faced with the often-juxtaposed positions of artful negotiations and the obligation to maintain the highest standard of ethical conduct. It was the intent of the ABA that the Model Rules provide the standards by which lawyers are to conduct themselves. However, these standards fall short of identifying the path that lies between successful negotiations and unethical conduct. Instead, it seems a lawyer must read between the lines to determine the path to take while in the midst of negotiating on behalf of a client.

Model Rule/Model Code

The Model Rule most frequently cited for guidance on the ethical conduct expected of a lawyer during negotiations is Model Rule 4.1.

Model Rule 4.1—Truthfulness in Statements to Others, provides:

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

The corresponding Model Code, DR 7-102(A)(5), states that in representing a client, a lawyer shall not “[k]nowingly make a false statement of law or fact.” DR 7-102(A)(3) provides that a lawyer shall not “[c]onceal or knowingly fail to disclose that which he is required by law to reveal.” Rule 1.6 sets forth an attorney’s obligation to maintain the confidentiality of information received from a client.vii

Implementation by States

Every state has adopted the Model Rules, except for California. As for Model Rule 4.1, 30 of the 49 states which have adopted it have done so without change. A brief explanation of the 29 states that have adopted an altered version of Model Rule 4.1, and California’s related rules are as follows.

California: California follows neither the Model Rules nor the Model Code. Instead, California requires a lawyer not to suppress any evidence the lawyer or client has an obligation to reveal, and prohibits false statements of law or fact when presenting a matter to a tribunal. Truthfulness in statements to third persons is not addressed. See, Rule of Professional Conduct, 5-220 and 5-200. But California Courts often cite the ABA Model rules in their opinions.viii Business and Professions Code sections 6106 and 6128(a) preclude an attorney from committing “any act of moral turpitude or dishonesty” and “any deceit or collusion or consents to any deceit or collusion, with intent to deceive the court or any party…”

Hawaii: Does not include the last clause in paragraph (b), “unless disclosure is prohibited by Rule 1.6.”

Illinois: In paragraph (b) Illinois omits “to a third party”.

Kansas: The disclosure standard in paragraph (b) applies “unless disclosure is prohibited by or made discretionary under Rule 1.6.”

Kentucky: Does not include paragraph (b).

Maryland: Provides in paragraph (b) that the duties “apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.”

Michigan: Omits paragraph (b), but in its commentary to the rule discusses those circumstances that would make the failure to disclose equivalent to a false statement.

Minnesota: Does not include either the term “material” or the phrase “to a third person” in its version of paragraph (a), and omits paragraph (b).

Mississippi: Does not include the last clause of paragraph (b). However, in the commentary it states the requirement of disclosure created by paragraph (b) is subject to the obligations created by Rule 1.6.

New Jersey: Eliminates the last clause of paragraph (b) and adds a separate provision that provides that the duties set forth “apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.” The comment notes that in some circumstances, Rule 4.1 can impose an even greater duty to disclose than what is required under Rule 1.6 (confidentiality of client information).

New York: Omits paragraph (b).

North Carolina: Omits paragraph (b).

North Dakota: “In the course of representing a client, a lawyer shall not make a statement to a third person of fact or law that the lawyer knows to be false.”

Ohio: “In the course of representing a client a lawyer shall not knowingly do either of the following: (a) make a false statement of material fact or law to a third person; (b) fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client.”

Pennsylvania: Unique approach was to modify paragraph (b) by replacing the word “assisting” with the phrase “aiding and abetting.”

Tennessee: Significantly modifies subsection (b) and adds a subsection (c) to the Model Rule 4.1 and leaves subsection (a) intact. The modifications follow:

(b) If, in the course of representing a client in a non-adjudicative matter, a lawyer knows that the client intends to perpetrate a crime or fraud, the lawyer shall promptly advise the client to refrain from doing so and shall consult with the client about the consequences of the client’s conduct. If after such consultation, the lawyer knows that the client still intends to engage in the wrongful conduct, the lawyer shall:

(1) withdraw from the representation of the client in the matter; and

(2) give notice of the withdrawal to any person who the lawyer knows is aware of the lawyer’s representation of the client in the matter and whose financial or property interests are likely to be injured by the client’s criminal or fraudulent conduct. The lawyer shall also give notice to any such person of the lawyer’s disaffirmance of any written statements, opinions, or other material prepared by the lawyer on behalf of the client and which the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.

(c) If a lawyer who is representing or has represented a client in a non-adjudicative matter comes to know, prior to the conclusion of the matter, that the client has, during the course of the lawyer’s representation of the client, perpetrated a crime or fraud, the lawyer shall promptly advise the client to rectify the crime or fraud and consult with the client about the consequences of the client’s failure to do so. If the client refuses or is unable to rectify the crime or fraud, the lawyer shall:

(1) if currently representing the client in the matter, withdraw from the representation and give notice of the withdrawal to any person whom the lawyer knows is aware of the lawyer’s representation of the client in the matter and whose financial or property interests are likely to be injured by the client’s criminal or fraudulent conduct; and

(2) give notice to any such person of the lawyer’s disaffirmance of any written statements, opinions, or other material prepared by the lawyer on behalf of the client and that the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.

Texas: Version of paragraph (b) is also unique, which states that a lawyer shall not “fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”ix

Vermont: Adds to the end of (a) “...in the course... shall not knowingly;” and deletes (a) and (b).

Virginia: Takes out “material” and “to a third person” in (a); takes out “unless disclosure is prohibited by Rule 1.6” in (b).

Interpretation of Model Rule 4.1

The number of articles and cases which discuss the ethical ramifications of Model Rule 4.1 reflects the various adaptations of the rule as recited above. They address the duty of truthfulness, what constitutes a false statement by a lawyer or client and what is a material statement of law or fact.

Duty of Truthfulness

Lawyers are subject to discipline if they knowingly make false statements of law or fact to others in the course of representing a client, including during negotiations. Model Rule 4.1(a); DR 7-102(A)(5). See, also, Restatement of the Law Governing Lawyers, § 157 (Tent. Draft No.8, 1997), where a lawyer communicating on behalf of a client may not knowingly make false statements of material fact or law to a non-client.

It has been held that for disciplinary purposes, reliance by and injury to a third person are not necessarily required. Florida Bar v. Johnson, 648 So.2d 680 (Fla. 1994); see, Restatement of the Law Governing Lawyers, § 157, comment a. See, also, “Symposium: The Lawyer’s Duties and Liabilities to Third Parties,” 37 S. Tex. L. Rev. 957 (1996).

 

 

 

Context of False Statements

Out of Court

Discipline under Model Rule 4.1(a) usually involves lawyers’ statements outside of litigation. E.g., People v. Newman, 925 P.2d 783 (Colo. 1996), which involved a false statement in a letter to a customer of a corporation for which the lawyer worked where the lawyer stated that he had a “multi-state practice.” In re Lassen, 672 A.2d 988 (Del. 1996), involving fictitious billing to a clients’ accounts. Florida Bar v. Cramer, 678 So.2d 1278 (Fla. 1996), where the lawyer signed a third party’s name to a lease and misrepresented the identity of the actual lessee. In re Hendricks, 462 S.E.2d 286 (S.C. 1995), where a lawyer misrepresented facts to a title insurance company to obtain a title policy.

In Court

Model Rule 3.3(a), which addresses statements made to tribunals, has been interpreted by some to indicate that Rule 4.1(a) applies only to out-of-court statements. See, Maryland Attorney Grievance Commission v. Rohrback, 591 A.2d 488, 496 n.8 (Md. 1991), which suggested that statements made to a tribunal, Rule 3.3(a) is the relevant standard rather than Rule 4.1. However, Rule 4.1(a) does not contain such limitation, and there is authority that maintains it does apply to statements made in court. See, ABA Formal Ethics Opinion, 93-370 (1993), where a lawyer’s deliberate misrepresentation or lie to a judge in pre-trial negotiations would be improper under Rule 4.1.

On Behalf of a Client

Rule 4.1(a) applies only when dealing with others on behalf of a client. In re McCann, 669 A.2d 49 (Del. 1995). Misrepresentations made outside the professional arena are addressed by Rule 8.4(c), which involves “conduct involving dishonesty, fraud, deceit or misrepresentation.”

Statements by a Lawyer

Model Rule 4.1(a) covers a lawyer’s false statements. Terrell v. Mississippi Bar, 635 So.2d 1377 (Miss. 1994), where a lawyer falsely stated she sent a release to her client and that her client had not negotiated settlement checks.

Repeating Client’s False Statements

Rule 4.1(a) also applies when a lawyer knowingly repeats or affirms a client’s untrue statement. E.g., Florida Bar v. Burkich-Burrell, 659 So.2d 1082 (Fla. 1995), where a lawyer notarized false answers to interrogatories filed on behalf of her husband/client, even though the answers were not consistent with her personal knowledge of events.

Responding to Questions Falsely

Rule 4.1(a) restricts a lawyer’s options when a third party asks a question and a truthful answer will hurt the lawyer’s client or undo some advantage the lawyer has in the case. The lawyer may refuse to answer, but may not tell a lie. See, ABA Formal Ethics Opinion, 93-370 (1993), where a lawyer may decline to answer improper questions by a judge regarding settlement authority, but is barred by Rule 4.1 from responding with deliberate misrepresentations or lies. Nor can a false answer be justified by the lawyer’s duty to protect confidential information. Rule 1.6, in most jurisdictions, will not protect a lawyer’s false statement because Rule 4.1(a) sets out an absolute duty to avoid making known false statements. See, generally, People v. Petsas, 262 Cal.Rptr. 467 (Cal.Ct.App. 1989).

Omissions or Incomplete Statements

Whether Rule 4.1(a) applies to omissions is unclear. In the comment to Rule 4.1, it is acknowledged that a lawyer “generally has no affirmative duty to inform an opposing party of relevant facts,” but “[m]isrepresentations can also occur by failure to act.” Logically thinking then, a pure omission does not trigger the application of Rule 4.1(a). Becker, “Ethical Concerns in Negotiating Family Law Agreements,” 30 Fam. L. Q. 587, 590 (1996). However, Rule 4.1(a) is triggered if an attorney’s statements are true but misleading, because the statement deliberately omits material information. Florida Bar v. Joy, 679 So.2d 1165 (Fla. 1996), where a lawyer violated Rule 4.1 by making a statement that was literally true, but intended to mislead opposing counsel.

Statements of Fact

Model Rule 4.1 requires truthfulness in statements of “material fact.” The comment to the rule provides some guidance and states that “[w]hether a particular statement should be regarded as one of fact can depend on the circumstances.” See, ABA Model Rule 4.1(a) Commentary.

This has been interpreted to mean that if a lawyer, who states intent to do something without any actual intention of doing it, is making a false statement of fact under Rule 4.1. E.g., In re Graveley, 805 P.2d 1263 (Mont. 1990); ABA Formal Ethics Opinion, 94-383 (1994), where a lawyer made a false threat to file disciplinary charges against another lawyer.

Statements of Law

Rule 4.1(a) and DR 7-102(A)(5) prohibit lawyers from lying to others about the law, as does § 157 of the Restatement of the Law Governing Lawyers.

If the lawyer’s misstatement of law convinces the non-lawyer to agree to a settlement, the settlement may be set aside for fraud. E.g., Sainsbury v. Pennsylvania Greyhound Lines, 183 F.2d 548 (4th.Cir. 1950), where the release of a personal injury claim was set aside because it was based on the lawyer’s false representation that government employees could only recover for pain and suffering.

Materiality

Neither the Model Rules nor the Model Codes provide a definition of the term material. Some case authority would suggest that a fact is material if it is important to the parties or the merits of the matter. See, In re Zeiger, 692 A.2d 1351 (D.C. 1997), where information hidden by counsel from an insurer about the personal injury client’s alcoholism and use at time of an accident was material under Rule 4.1(a).

While the word material is not defined in Model Rule 4.1 or in the commentary section to the rule, much has been written on the plain meaning of the term. A good definition is found in the Restatement. It provides that under contract and tort law, a representation is material if a reasonable person would consider it important in deciding on a course of action or if the speaker knows that the recipient is likely to regard it as important. Restatement (Second) of Torts, § 538(2); Restatement (Second) of Contracts, § 162(2) (1979).

 

Third Persons

To whom does the lawyer owe the obligation of truthfulness? The reported disciplinary cases under Rule 4.1 run the gamut as to people and entities with whom lawyers deal. For example:

Parties with adverse interest. E.g., Louisiana State Bar Association v. Harrington, 585 So.2d 514 (La. 1990).

Parties to transaction. E.g., State ex rei. Oklahoma Bar Association v. Lacoste, 813 P.2d 501 (Okla. 1991).

Other lawyers. ABA Formal Ethics Opinion, 94-383 (1994), where a threat to file a disciplinary complaint against opposing counsel without intent to actually file the complaint would violate Rule 4.1. ABA Formal Ethics Opinion, 95-387 (1995), which involved avoiding violation of Rule 4.1(a), where a lawyer whose client died before acceptance of the settlement offer must inform opposing counsel of the death. Cf Schlapper v. Maurer, 687 So.2d 982 (Fla.Dist.Ct.App. 1997), which cited Rule 4.1, where the court held that misrepresentation by an attorney to opposing counsel warranted setting aside judgment.

Administrative officials. E.g., ABA Formal Ethics Opinion, 85-382 (1985), where with regard to preparation of tax returns and negotiating administrative settlements, a lawyer has a duty under Rule 4.1 not to mislead the Internal Revenue Service deliberately, either by misstatements, silence, or by permitting the client to mislead.

Judges. E.g., In re Higgins, 884 P.2d 1097 (Ariz. 1994); Florida Bar v. Schramm, 668 So.2d 585 (Fla. 1996); State ex rei. Oklahoma Bar Association v. McMillian, 770 P.2d 892 (Okla. 1989).

Court clerks or officials. E.g., In re Breen, 552 A.2d 105 (N.J. 1989); In re Sandy, 546 N.W.2d 876 (Wis. 1996).

Other lawyers in attorney’s law firm. E.g., People v. Goldstein, 887 P.2d 634 (Colo. 1994).

Lenders. E.g., In re Myers, 489 S.E.2d 199 (S.C. 1997).

Insurers. E.g., In re Zeiger, 692 A.2d 1351 (D.C. 1997); In re Seck, 905 P.2d 122 (Kan. 1995).

Witnesses. See, Copp v. Breskin, 782 P.2d 1104 (Wash.Ct.App. 1989), where a lawyer who hires an expert witness has a duty under Rule 4.1 to prevent or correct misunderstandings about who is responsible for paying the witness. ABA Formal Ethics Opinion, 93-378 (1993), where a lawyer who initiates ex parte contact with the opposing party’s expert witness is precluded by Rule 4.1(a) from implying that the witness must speak to the opposing lawyer.

Client’s family and friends. E.g., In re Sumner, 665 A.2d 986 (D.C. 1995), involving the client’s girlfriend.

Miscellaneous third parties. E.g., Mitchell v. Kentucky Bar Association, 924 S.W.2d 497 (Ky. 1996), involving heirs. Maryland Attorney Grievance Commission v. Rohrback, 591 A.2d 488 (Md. 1991), involving a probation agent. L.S. v. Mississippi Bar, 649 So.2d 810 (Miss. 1994), involving jurors. See, also, Florida Bar v. McLawhorn, 505 So.2d 1338 (Fla. 1987), involving physicians to whom the client owed money.x

The Negotiation Process

Truthfulness in Negotiations

Much of the discussion found in the relevant cases and articles about truthfulness in out-of-court statements centers on what lawyers say or withhold when they negotiate on behalf of clients. The preamble to the Model Rules simply states “[a]s negotiator, a lawyer seeks a result advantageous to the client but consistent with the requirements of honest dealing with others.” xi The Model Rule prohibits lawyers from lying to the opposing party in the course of negotiations by either making a false statement of material fact or law or failing to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.xii

It has been argued that a lawyer should be held to a higher standard of truthfulness in negotiation than the lawyer’s client. This viewpoint is set forth in “A Causerie on Lawyers’ Ethics in Negotiation,” 35 La. L. Rev. 577 (1975). See, also, Steele, “Deceptive Negotiating and High-Toned Morality,” 39 Vand. L. Rev. 1387 (1986).

Not All “Puffery” is Treated the Same

In comment 2 to Model Rule 4.1, the ABA provides: “Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to any acceptable settlement of a claim ordinarily is in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.” xiii Similarly in 2006, the ABA issued Formal Opinion No. 06-439, in which the ABA stated “statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation ‘puffing,’ ordinarily are not considered ‘false statements of material fact’ within the meaning of the Model Rules.”

In 2015, the California State Bar issued Formal Ethics Opinion Number 2015-194, which addresses the issue of puffery and posturing. Therein, the Opinion expresses that “puffery and posturing, such as statements about a party’s negotiating goals or willingness to compromise, are generally permissible because they are not considered statements of fact.” In that Opinion, the differences between precluded misrepresentations and allowable opinions was discussed. It notes that “courts have found attorneys liable in tort for making, during the course of their representation of a client, false statements of material fact to third parties. For example, in Vega v. Jones, Day, Reavis, & Pogue (2004) 121 Cal.App.4th 282, 290-291, Jones Day hid the existence of “toxic” stock provisions with the intent to induce Vega to give up his valuable stock in Monsterbook in exchange for Transmedia's “toxic” and worthless stock. Id. Jones Day deliberately concealed the “toxic” stock provisions by failing to provide the proper written disclosure it prepared, and by instead providing a different, sanitized version of the disclosure. Id. On the other hand, the Opinion notes that a “statement of opinion is not actionable, nor is a statement of ‘puffery’.” The Opinion defined “puffery” by citing various cases where Courts provided that (a) a “statement of puffery is one that is ‘extremely unlikely’ to induce reliance”; (b) the difference “rests in the specificity or generality of the claim” and (c) a “statement that is quantifiable, specific or absolute will generally be actionable, whereas a statement that is general or subjective will notxiv. (Citation omitted)"

The ABA Ethics Committee advises that while a certain amount of posturing or puffery in settlement negotiations may be acceptable between opposing counsel, a party’s actual bottom line or settlement authority is a material fact within the meaning of Rule 4.1(a). Hence, you will find in opinions authored on behalf of the ABA that a lawyer may decline to answer a judge’s question about the lawyer’s settlement authority, but a deliberate misrepresentation or lie to a judge regarding settlement authority would be improper under Rule 4.1. ABA Formal Ethics Opinion, 93-370 (1993). However, the comment to Model Rule 4.1 recognizes that during typical negotiations, estimates of price or value, as well as a party’s intentions as to an acceptable settlement, are not regarded as statements of material fact.

Key Examples of Statements Made During Negotiations

Statements Re Available Insurance

In Fire Ins. Exchange v. Bell by Bell (Ind. 1994) 643 N.E.2d 310, the principal question was “whether, and to what extent, a party who is represented by counsel has the right to rely on a representation by opposing counsel during settlement negotiations.” (Id. at p. 311.) In negotiating a settlement, the attorney for the Defendant stated that the policy limits were $100,000 when they were actually $300,000, as he knew. Based on that false information, Plaintiff’s attorney advised his client to settle for $100,000 and she did so. Plaintiff’s attorney later learned of the real limits and filed an action on behalf of his client against the insurance company and its attorney, alleging a cause of action based on the misrepresentation of the policy limits. The Indiana Supreme Court affirmed a denial of the Defendant’s motion for summary judgment, stating:

The reliability and trustworthiness of attorney representations constitute an important component of the efficient administration of justice. A lawyer's representations have long been accorded a particular expectation of honesty and trustworthiness. …

... The reliability of lawyers' representations is an integral component of the fair and efficient administration of justice. The law should promote lawyers' care in making statements that are accurate and trustworthy and should foster the reliance upon such statements by others. (Fire Ins. Exchange, supra, 643 N.E.2d at pp. 312-313.) The court concluded that, as a matter of law, Plaintiff’s attorney had the right to rely on opposing counsel's representation of the policy limits. (Id. at p. 313.)

The United States Court of Appeals for the Second Circuit reached the same conclusion in Slotkin v. Citizens Cas. Co. of New York (2d Cir. 1979) 614 F.2d 301. There, the attorneys for an insurer in a medical malpractice case stated that the policy limits were $200,000, failing to mention that there was an additional $1 million in excess coverage. The plaintiffs settled for $185,000.

Upon learning of the misrepresentation, the plaintiffs brought an action against the insurer's attorneys, alleging fraud. The plaintiffs prevailed. In upholding the verdict as to one of the attorneys, the Second Circuit, applying New York law, stated:

[The insurer's attorney] stipulated that “to the best of his knowledge” there was only $200,000 worth of coverage .... [His] insistence that the policy limit was $200,000 ... renders him liable under the New York definition of scienter as “a reckless indifference to error,” “a pretense of exact knowledge,” or “[an] assertion of a false material fact ‘susceptible of accurate knowledge’ but stated to be true on the personal knowledge of the representer.” (Id. at 314.)

Similarly, in Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, after the insurance carrier for a defendant had agreed to extend coverage to willful acts in order to avoid having to pay for Cumis counsel, the attorney for the insurance company failed to disclose that change to plaintiff’s attorney and instead pointed to the statutory exclusion for willful acts to justify his position that the insurance company should only pay $120,000 toward a judgment totaling $336,302.31. The Court found that the attorney misrepresented the scope of insurance coverage, and that he had a duty not to make fraudulent statements.

Lastly, In re McGrath, 468 N.R.S.2d 349 (N.R.App.Div. 1983), a lawyer was disciplined for engaging in conduct that reflected adversely on his fitness to practice law. The lawyer violated DR 1-102(A)(6) by stating that to the “best of his knowledge,” there was $200,000 in insurance, when documents in the lawyer’s possession indicated $1 million in coverage. In Nebraska State Bar Assoc. v. Addison, 226 Neb. 585, 412 N.W.2d 855(1987), the plaintiff’s attorney negotiated a reduction in a hospital lien, but failed to mention an excess policy of $1 million that was another potential source of recovery.

Statements Re Bankruptcy

In Siegel v. Williams (Ind. Ct. App. 2004), 818 N.E.2d 510, after their attorney failed to timely file their action, the plaintiffs hired a different counsel to pursue an attorney malpractice action against their original attorney, Siegel. During trial, Siegel, who was representing himself, offered to settle the claim for $25,000, and told the plaintiffs’ new attorneys “that if the jury awarded more than $25,000, he would declare bankruptcy.” Id. at 512. The case settled for that amount, and then two years later, Siegel ran into the Plaintiffs’ attorney and told him that he “pulled one over on [plaintiffs]” because he could have paid a judgment of several hundred thousand. The Court found Siegel liable for fraud because Siegel was an attorney of record, and thus the plaintiffs’ attorneys had a “right to rely upon any material misrepresentations that may have been made by opposing counsel” ... as a matter of law. (Citing Fire Ins. Exchange v. Bell, supra, at 313). The Court held that Siegel's false threat to file for bankruptcy if the jury returned a verdict awarding the plaintiffs more than $25,000 formed the basis for constructive fraud.

A different result may occur if the attorney does not know if the client is willing/can file for bankruptcy. In the California State Bar Ethical Opinion 2015-194, discussed above, one of the examples discussed involved an attorneys’ threat that the client would file bankruptcy if a judgment in excess of a certain amount was issued despite the fact that he knew the client did not intend to file for bankruptcy and was not eligible to file. The opinion notes that such a statement would violate the attorney’s ethical duty. However, the opinion further noted that “if the Defendant’s lawyer does not know whether or not his client intends to file for bankruptcy or whether his client is legally eligible to obtain a discharge,” the conclusion might be different.xv

Statements About Claims, Evidence or Witnesses

In Office of Disciplinary Counsel v. DiAngelus (Pa. 2006) 907 A.2d 452, a defense attorney represented to the prosecutor during plea negotiations that the arresting officer had agreed to a reduction of the charge. The officer denied that he had agreed to such a reduction and offered proof that he was not present when the alleged conversation took place. The Pennsylvania Court held that the attorney engaged in a material and knowing misrepresentation in violation of Rule 4.1. The attorney was suspended for five years.

In Pickering v. State Bar (1944) 24 Cal.2d 141, 144, an attorney filed a personal injury complaint on behalf of his client and included an allegation for a claim for loss of consortium despite the fact that he knew his client was not married and that the alleged wife had been out of the state during the entire period in question. The attorney’s disbarment was upheld on appeal. The Court held that Business and Professions Code section 6068 prescribes, in part, that it shall be the duty of an attorney “never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” The Court held the facts showed an attorney knew his client was not married and the alleged wife was not in the state.

In the Matter of Kerry Dale Holyoak (2016 Kansas Supreme Court) 304 Kan. 644, an attorney was found to have engaged in misconduct and was disciplined by the Board of Discipline of Attorneys. Mr. Holyoak’s conduct involved a trio of violations that occurred during his negotiation and drafted a covenant not to sue. During that negotiation, Mr. Holyoak misrepresented that he represented 50 different landowners, when he only represented himself, and as part of the settlement he offered to include as one of the terms that he would destroy certain evidence in his possession, and he further requested that the proceeds payable to him be deposited into an offshore account. The Court found the attorney’s misrepresentation as to who his clients were was an act of dishonesty, fraud, deceit or misrepresentation. The Court further found that his offer to destroy evidence and efforts to avoid paying taxes was conduct which adversely reflected on his fitness to practice law

Other examples include, Raymark Industries, Inc. v. Stemple, 714 F.Supp. 460 (D.Kan. 1988), a lawyer refused to dismiss a fraud complaint against lawyers who allegedly induced an asbestos manufacturer to settle claims by falsely representing that the claims were valid; and Jeska v. Mulhall, 693 P.2d 1335 (Or.Ct.App. 1985), where a seller’s lawyer could be sued for fraudulent misrepresentation in connection with an alleged statement to purchasers that they were getting “a lot of property for the money,” when the seller’s lawyer knew that the client could not convey title.xvi

In Hansen v. Anderson, Wilmarth & Van Der Maaten (2001 Supreme Court of Iowa) 630 N.W.2d 818, an attorney for one side provided the attorney for the other side two documents required by the parties’ agreement as evidence that providing attorney’s client had authorization to enter into the agreement. When he presented those documents, the attorney knew the documents were false. The Court held that once a lawyer responds to a request for information in an arm's-length transaction and undertakes to give that information, the lawyer has a duty to the lawyer requesting the information to give it truthfully. The Court further held that a breach of that duty supports a claim of equitable indemnity by the defrauded lawyer against the defrauding lawyer. Id. at 825-826.

Failure To Make Statement About Client’s Death Or New Action By Client

While disclosure of adverse facts during negotiations is not typically mandated, so long as an attorney does not misrepresent contrary facts, there is one disclosure that attorneys are required to make. In Virzi v. Grand Trunk Warehouse & Cold Storage Co. (1983) 571 F. Supp. 507, the defendant's attorney sought to have a settlement declared void after he discovered that the plaintiff had died prior to the settlement being made. The plaintiff’s attorney had failed to disclose this fact during negotiations despite his knowledge that the death had occurred, but he never made an affirmative representation to the contrary. The Court held that it was

[o]f the opinion that the same duty of candor and fairness required a disclosure to opposing counsel, even though counsel did not ask whether the client was still alive. Although each lawyer has a duty to contend, with zeal, for the rights of his client, he also owes an affirmative duty of candor and frankness to the Court and to opposing counsel when such a major event as the death of the plaintiff has taken place. Id. at 512.

In Kentucky Bar Ass'n v. Geisler (1997) 938 S.W.2d 578, the Kentucky Supreme Court held that attorney's failure to disclose her client's death to opposing counsel amounted to affirmative misrepresentation and warranted public reprimand citing Model Rule 4.1 and ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 95–397.

In Pendleton v. Central New Mexico Correctional Facility, 184 F.R.D. 637 (D.N.M. 1999), a Rule 11 sanctions motion was brought against an attorney who, during settlement negotiations, failed to disclose the filing of another retaliation claim against the defendant by the client. Although the Rule 11 motion was not granted, the court disparaged the attorney’s conduct, stating:

As we go through this life we learn, and sometimes the hard way, who we can trust to be candid and who we cannot. It is unfortunate that some attorneys apparently feel no obligation to their fellow attorneys, but then again, as the saying goes, “it’s a short road that doesn’t have a bend in it.” The Rules of Professional Conduct and the case law suggest that, even in the context of finalizing a settlement agreement and release, a knowing failure to disclose a non-confidential, material and objective fact upon inquiry by opposing counsel is improper. Id. at p. 641. (citations omitted)

Statement About Reporting Criminal Conduct

In Heng Chan v. Sung Yue Tung Corp. (2007) 2007 WL 1373118, the defendants challenged the plaintiffs’ request for attorneys’ fees on the grounds that plaintiffs’ attorney negotiated in bad faith. Defendants' only basis for asserting bad faith is their claim that plaintiffs' counsel inappropriately raised the possibility of criminal liability for the defendants' apparent failure to accurately report their income to the relevant tax authorities. Id. at 6. Plaintiffs’ counsel pointed out that defendants had an interest in avoiding trial because of their potential criminal exposure. The Court agreed that “the mere mention of potential criminal liability can constitute a threat… such a threat only violates the provision if it is “solely to obtain an advantage in a civil matter.” Id. at 7.

Statement About Settlement Authority/Willingness to Settle

Another common example cited as an acceptable area of puffery involves the client’s bottom line or willingness to settle. These are typically areas that an adversary will not reveal and thus the other side should not anticipate honesty in connection with such statements. Attorneys can overstate or understate their client’s settlement expectations.xvii On the other hand, when the attorney has been given specific authority to settle, it would be a misrepresentation for the attorney to represent that it does not have any such authority.xviii

How to Protect Your Client From Misrepresentations

In a February 2017, article published in Associate’s Mind titled Ethics of Misrepresentation in Negotiation by Keith Robert Lee, the author noted that a recent law review articlexix identified and discussed strategies for identifying misrepresentations made by opposing counsel during negotiations:

Dig Relentlessly for Information

One defensive technique is to persuade the responder to share lots of information. This includes using “encouragers” such as “I hear you . . .” or “Go on . . .” coupled with such requests as “Could you tell me more about that?” or “Can you flesh that out a bit?”

Demand the use of Objective Standards

Asking questions such as “What do you base that number on?” or “Is that according to industry standard?” is essentially asking the other party to justify his or her position using objective standards.

Recognize and Thwart Tactics of Evasion

Prior to negotiating, the negotiator should prepare a list of the questions she wants answered, in order of importance. During the negotiation, she should listen carefully to the responses provided, as many will be mere attempts to evade answering the question. The negotiator must continue grilling until the information she needs is either revealed or protected in a very direct manner.

Establish Long-Term Relationships and Watch for Signs of Deception

Research also suggests, however, that one of the more reliable indicators of lying is when one’s behavior suddenly changes (Mann, Vrij, and Bull 2002). For example, if a normally aggressive negotiator suddenly becomes more conciliatory and soft-spoken, it could indicate that he is engaging in deceptive behavior. Thus, developing long-term relationships with other negotiators can help a lawyer develop a sense of their “baseline behaviors” and some ability to determine when that behavior has changed.

Use “Come Clean” Questions Strategically

Used at critical moments in the negotiation, one can ask the “come clean” question: “Is there anything unknown to me or to my client that could have a material impact on this case?” This can be quickly followed by “Getting things out on the table early tends to prevent headaches down the road.” Negotiators on the other side of the table might attempt to deflect the question or change the topic, so one should be prepared to ask the question more than once (perhaps with a new approach and a different wording).

Other Ethical Issues That Arise During Negotiations

Negotiations Between Clients Directly

While attorneys are universally precluded from communicating directly with an opposing party that is represented by counsel, your client is not precluded from talking or negotiating with the opposing party. ABA Formal Opinion 11-461 provides that

Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer’s assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer.

In the discussion portion of the Opinion, it provides that “The line between permissible advice and impermissible assistance may not always be clear.” The line must be drawn on the basis of whether the lawyer’s assistance is an attempt to circumvent the basic purpose of Rule 4.2, to prevent a client from making uninformed or otherwise irrational decisions as a result of undue pressure from opposing counsel. This Committee believes that, without violating Rules 4.2 or 8.4(a), a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary. That advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used. Such advice may be given regardless of who—the lawyer or the client—conceives of the idea of having the communication.

The Opinion also identifies areas

[p]rime examples of overreaching (which) include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel. To prevent such overreaching, a lawyer must, at a minimum, advise her client to encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information. If counsel has drafted a proposed agreement for the client to deliver to her represented adversary for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement.

An example of this occurred in Hancock Roofing & Construction, LLC v. Ladder Now, LLC (2015 Superior Court of Georgia) 2015 WL 12551626, wherein some defendants filed a Motion for Protective Order and Other Equitable Relief. Therein, the defendant Ladder Now, LLC, advised his attorney that he no longer needed an attorney, and the fired attorney informed his former client that he was allowed to speak with/negotiate with the plaintiff directly. Plaintiff and defendant did speak and negotiated a settlement that resulted in a dismissal of the action. Certain other defendants then filed a Motion for Protective Order claiming plaintiff’s attorney had acted unethically. Plaintiff’s counsel denied that he had violated Rule 4.2 that precluded an attorney from communicating with another party represented by counsel on two grounds. First, he noted that the defendant was no longer represented; and (2) more importantly, plaintiff’s attorney swore that he never had any direct communication with the defendant, only his client, the plaintiff did. The Trial Court found that moving parties’ attorney failed to demonstrate any ethical violation by plaintiff’s attorney. The Trial Court noted that parties are allowed to talk/negotiate directly and that the attorney for one party is allowed to advise his/her client during those discussions citing the ABA Opinion discussed in this article above.

Negotiating Settlement of Client’s Claim Concurrently With Attorney’s Fee Claim

Another area where significant ethical issues may arise during negotiations is when an attorney attempts to negotiate a settlement of both the client’s claim and the attorneys’ fee claim. Significant conflicts may arise, if an attorney does not carefully pursue resolution of such claims.

In The Florida Bar v. Kane (2016 Supreme Court of Florida) 202 So.3d 11, the attorneys represented numerous health care provider clients that sued Progressive Insurance Company. As part of their litigation strategy, the attorneys retained other attorneys to initiate a separate bad faith case against Progressive on behalf of some of their clients. After years of litigation, the attorneys settled with Progressive, fired the bad faith attorneys, and failed to disclose the full terms of the settlement to their clients. The attorneys sought to keep the bulk of the settlement for themselves. The bad faith attorneys sued. The final judgment included extensive findings as to the lawyers' actions, noting that the matter “could be a case study for a course on professional conduct involving multi-party joint representation agreements and the ethical pitfalls surrounding such agreements.” Specifically, the court found that the lawyers pursued the bad faith claims to increase pressure on Progressive to settle and that while only thirty-seven clients were actually named as plaintiffs in that bad faith case, both the lawyers and the bad faith attorneys contemplated additional plaintiffs would be added as the lawyers continued to perfect the clients' bad faith claims. Judge Crow held:

.... In addition, the evidence establishes that the law firms unfairly deprived [the bad faith attorneys] of a fee by ignoring multiple conflicts of interest, misrepresenting the terms of the settlement to the [bad faith attorneys], misrepresenting the terms of the settlement to the clients to obtain the releases to trigger payment, manipulating the allocation of the settlement to obtain most of it as attorneys' fees, and by discharging the [bad faith attorneys] for no reason.

Based on the Court’s findings, a referee recommended the lawyers be found guilty of violating several Bar Rules, including:

4-1.7(b) (a lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation may be materially limited by the lawyer's own interests unless the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client, and the client gives consent);

4–1.7(c) (in representing multiple clients in a single matter, the consultation shall include an explanation of the implications of the common representation and the advantages and risks involved);

4–1.8(g) (a lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, unless each client consents after consultation, including disclosure of the existence and nature of all the claims involved and of the participation of each person in the settlement);

4–1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions);

4–8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation);

3–4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute cause for discipline);

4–1.5(f)(5) (in the event of recovery in a case involving a contingency fee, the lawyer shall prepare a closing statement).

The Supreme Court upheld the referee’s findings. First the Florida Supreme Court found that the lawyers' secret settlement with Progressive was a conflict of interest and an improper aggregate settlement, in violation of Bar Rules 4–1.7(b), 4–1.7(c), and 4–1.8(g). The settlement was an aggregate settlement, in that it encompassed both the lawyers’ claims and the bad faith claims, as well as attorney fees and costs. Other than to which firms the money was to be paid, the settlement offered no other guidance or restrictions as to how the money would be allocated. Thus, it was left entirely to the lawyers to determine how much each client would receive and how much would be taken as attorney fees. This arrangement created significant conflicts between the lawyers' interests and those of their clients, and between the lawyers and the bad faith attorneys. “The settlement pitted the lawyers' interests against the interests of their own clients. The less the clients received, the more the PIP attorneys received.” Id. at 20. The Court held that the lawyers' most egregious violation occurred when they abandoned their clients' bad faith claims in favor of a greater fee for themselves.

Next, the Supreme Court held that the attorneys, in communicating the proposed settlement with Progressive to their clients, did not adequately explain the settlement so that their clients could make informed decisions and, in some instances, misled clients in violation of Bar Rules 4–1.4(b) and 4–8.4(c). The Court found that the attorneys withheld from clients nearly all material information about the settlement, entirely to further their own interests. The clients were not told: the total amount of the settlement; the fact that some clients (those named in the Goldcoast case) would receive money for their bad faith claims while other clients did not; the value of the bad faith claims, which some clients were required to waive without compensation; and the amount each respective firm intended to take as attorney fees. The clients were never given the opportunity to make informed decisions about their cases.

Finally, the Supreme Court held that the lawyers’ conduct was dishonest, deceitful, and contrary to honesty and justice, in violation of Bar Rules 4–8.4(c) and 3–4.3. It found the lawyers intentionally excluded the bad faith attorneys from their negotiations with Progressive, despite the bad faith attorneys' significant work in the Goldcoast case. The lawyers later offered only $300,000 to compensate all three bad faith attorneys, and the lawyers refused to disclose the terms of the settlement. The lawyers vigorously fought having to pay to the bad faith attorneys any money from the settlement. The Court held their actions were solely to preserve the largest fee for themselves. The Supreme Court upheld the suspensions and disbarments of the various lawyers.

Unlawful Practice of Law By Non-Lawyers

Another ethical problem that arises during negotiations is the involvement of non-lawyers in the settlement negotiations. In Herman v. Prudence Mutual Casualty Co. (1969) 41 Ill.2d 468, 471, in count III of the Complaint, plaintiff claims that Warren, an employee of Urban Service Bureau, Inc., which is employed by Prudence and other insurance companies to adjust and settle claims, maliciously, fraudulently and falsely advised him that Warren's only purpose was to reimburse him for sums of money ($100) not otherwise covered by plaintiff’s insurer for the repair of his automobile; that Warren advised him not to notify his attorney and that he (Warren) would explain, and that Warren did fraudulently explain, the legal relationship and nature of the releases, drafts and documents shown to him; that Warren filled out and completed such releases and drafts and fraudulently obtained from him a release of all claims against Prudence's assured for $100; that he relied on defendant's representations which were false and were willfully and maliciously made with intent to induce him to act thereon and to deceive and defraud him.

The Supreme Court of Illinois found that count III sufficiently alleged the unauthorized practice of law by the layman, Warren, to sustain a cause of action on that theory. The Court held that “[i]rrespective of whether a less comprehensive course of conduct would create a similar cause of action, the conduct here alleged includes acts which ‘by their nature * * * require a lawyer's training for their proper performance * * *.” Id. at 479. The Court reasoned that the:

State requires minimum levels of education, training and character before granting a license to practice law. Its purpose in doing so is the protection of the public, and the practice of law by those not so licensed is accordingly prohibited. (Citation omitted) The hazard to the public resulting from the practice of law by the unlicensed is evident from the allegations here if the facts are as charged. Where necessary to further the legislative purpose of protection of the public we have enjoined the unauthorized practice of law (Citation omitted) not primarily for the protection of attorneys generally, but rather for the protection of the public from potential injury resulting from reliance upon laymen for the performance of acts requiring the training, knowledge, and responsibility of a licensed attorney. Id. at 479.

The Deceptive/Unethical Negotiator is Often Less Successful

An increasing number of lawyers seem to believe that Competitive/Adversarial negotiators who employ deceptive, aggressive, and occasionally abrasive tactics are more likely to achieve beneficial results for their client, rather than Cooperative/Problem-Solving negotiators.xx Yet numerous published studies have found the opposite to be true.

In one study, it was the cooperative problem solvers who were viewed by their peers as the most effective negotiators. See, Gerald R. Williams, Legal Negotiation and Settlement (1983). More recently, in 2011 an article was published by Charles B. Craver titled “The Impact of Negotiator Styles on Bargaining Interactions” which assessed the relative effectiveness of the Cooperative/Problem-Solving and Competitive/Adversarial styles of negotiating. There, Mr. Craver noted that “The thought that Competitive/Adversarial negotiators are more effective than Cooperative/Problem-Solver bargainers was contradicted by separate empirical studies conducted by Professors Gerald Williams and Andrea Schneider.”

Professor Williams conducted his study of lawyers in Phoenix in 1976. He asked respondents to indicate whether attorneys with whom they had recently interacted were Cooperative/Problem-Solvers or Competitive/Adversarials. He found that 65 percent were classified as Cooperative/Problem-Solvers, 24 percent as Competitive/Adversarials, and 11 percent did not fit within either category. The respondents also indicated they considered the results achieved by effective Cooperative/Problem-Solvers to be as beneficial for their clients as the results attained by effective Competitive/Adversarials. Nonetheless, he found far fewer Competitive/Adversarial negotiators were considered effective vis-à-vis Cooperative/Problem-Solvers.

Professor Williams then asked the

[r]espondents to indicate whether the persons they had described were “effective,” “average,” or “ineffective” negotiators. Fifty-nine percent of Cooperative/problem-Solvers were considered to be “effective,” 38 percent were considered to be “average,” and only 3 percent were considered to be “ineffective.” On the other hand, only 25 percent of Competitive/Adversarials were considered to be “effective,” 42 percent were considered to be “average,” and 33 percent were considered to be ‘ineffective.’

In 1999, Professor Schneider replicated the Williams study with lawyers in Chicago and Milwaukee. Her respondents characterized 64 percent of their opponents as Cooperative/Problem-Solvers and 36 percent as Competitive/Adversarials. She also asked whether these persons were “effective,” “average,” or “ineffective” negotiators. She found that 54 percent of Cooperative/problem-Solvers were considered to be “effective,” 42 percent were considered to be “average,” and 4 percent were considered to be “ineffective.” On the other hand, only 9 percent of Competitive/Adversarials were considered to be “effective,” 37 percent were considered to be “average,” and 53 percent were considered to be “ineffective.” Although the ratings for Cooperative/Problem-Solvers did not change much from the Williams study, the ratings for Competitive/Adversarials changed significantly. The percentage of “effective” Competitive/Adversarials dropped from 25 percent in the Williams study to 9 percent in the Schneider study, and the percentage of “ineffective” Competitive/Adversarials increased from 33 percent in the Williams study to 53 percent in the Schneider study. These changes are not surprising when one considers the adjectives used to describe Competitive/Adversarial bargainers were more negative in the Schneider study than in the Williams study.

Helpful Principles To Keep You On The Straight and Narrow

In a December 2016, blog entry and article titled Ethics and Negotiation: Understanding What You Need to Keep In Mind At the Negotiating Table, Michael Wheelerxxi discussed a means to illuminate the boundaries between right and wrong during negotiations by keeping the following questions in mind:

Negotiation Principle 1. Reciprocity:

Would I want others to treat me or someone close to me this way?

Negotiation Principle 2. Publicity:

Would I be comfortable if my actions were fully and fairly described in the newspaper?

Negotiation Principle 3. Trusted friend:

Would I be comfortable telling my best friend, spouse, or children what I am doing?

Negotiation Principle 4. Universality:

Would I advise anyone else in my situation to act this way?

Negotiation Principle 5. Legacy:

Does this action reflect how I want to be known and remembered?

Conclusion

Every State now has certain rules that mandate the type of conduct attorneys must not engage in during negotiations. These rules are not always clear and the comments to the rules while intended to add clarity, often do just the opposite by creating more questions than answers. However, the intent is clear; you may engage in puffery or posturing, but you cannot lie about material facts or law.

While there is not a definitive answer to the ethical dilemma faced by lawyers who want to be successful negotiators, it is interesting to note that many lawyers think competitive or adversarial negotiators—who use highly competitive and occasionally questionable tactics to maximize client returns—are the most effective negotiators; yet as discussed above, studies show Cooperative/Problem-Solvers are often viewed as the more effective negotiators by their peers.

iEndnotes

 Model Code of Professional Responsibility (1969).

ii “Symposium: Ethics and Multijurisdictional Practice of Law,” Edward A. Carr, Allan Vanfleet, 36 S. Tex. Law L. Rev. 657-1197, 1995.

iii “Symposium: Ethics and Multijurisdictional Practice of Law,” Edward A. Carr, Allan Vanfleet, 36 S. Tex. Law L. Rev. 860, 861, 1995; Ethics for Litigators, David Hricik, Esq., Professor of Law Mercy University School of Law, dated 2003.

iv Model Rules of Professional Conduct, Preface (1983).

v www.ali.org; Ethics for Litigators, David Hricik, Esq., Professor of Law Mercy University School of Law, dated 2003.

vi ABA Model Rules of Professional Conduct, ABA Ethics 2000 Committee; Ethics for Litigators, David Hricik, Esq., Professor of Law Mercy University School of Law, dated 2003.

vii Model Rules of Professional Conduct (1983).

viii Ronald D. Rotunda, Verdict--Lawyers Lying In Negotiations (March 16, 2015)

ix ABA/BNA Lawyers’ Manual on Professional Conduct, MOPC 71—Obligations to Third Persons, Truthfulness in Statements to Others (2003); “Attorney-Liability to Third Parties,” 45 A.L.R.3d. 1177.

x ABA/BNA Lawyers’ Manual on Professional Conduct, MOPC 71—Obligations to Third Persons Truthfulness in Statements to Others (2003); “Attorney- Liability to Third Parties,” 45 A.L.R.3d. 1177

xi Model Rules of Professional Conduct (1983).

xii Ronald D. Rotunda, Verdict--Lawyers Lying In Negotiations (March 16, 2015)

xiii Ronald D. Rotunda, Verdict--Lawyers Lying In Negotiations (March 16, 2015); and Model Rule 4.1, Comment 2

xiv ABA Formal Op. 06-439, p2

xv Formal Ethics Opinion 2015-194 Example 5

xvi Craver, “Negotiation Ethics: How to be Deceptive Without Being Dishonest/How to be Assertive Without Being Offensive,” 38 S. Tex. L. Rev. 713, 1997, and Jarvis & Tellam, “A Negotiation Ethics Primer for Lawyers,” 31 Gonzaga L. Rev. 549, 1995/96.

xvii Formal Ethics Opinion Number 2015-194--Example # 3

xviii The blurry lines of negotiation ethics: when “puffing” becomes misrepresentation, by Brian Martin—1/1/12

xix Attorneys and Negotiation Ethics: A Material Misunderstanding?, Negotiation Journal, Vol. 29, No. 3, 2013

Marquette Law School Legal Studies Paper No. 13-20, by Art Hinshaw of Arizona State University, Peter R. Reilly of

Texas A&M University School of Law, and Andrea Kupfer Schneider of Marquette University - Law School

xx The Impact of Negotiator Styles on Bargaining Interactions, by Charles Craver of George Washington University Law School, 35 Am. J. Trial Advoc. 1 (2011)

xxi December 8, 2016, article titled Ethics and Negotiation: Understanding What You Need to Keep In Mind At the Negotiating Table, by Michael Wheeler published in Program on Negotiation at Harvard Law (www.pon.harvard.edu)

Negotiating Within Ethical Limitations

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