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    Ethical Negotiations: How Far is Too Far?

    Gregory T. Presmanes* & Phillip C. Kuck**

    Bovis, Kyle, Burch & Medlin, LLC

    200 Ashford Center North, Suite 500

    Atlanta, Georgia 30338

    Telephone: 770-391-9100

    Fax: 770-668-0878

    * Gregory T. Presmanes, Esq. is a Partner in the workers compensation defense practice at Bovis, Kyle, Burch & Medlin LLC ** Phillip C. Kuck is a third-year J.D. candidate at Georgia State University College of Law

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    Ethical Negotiations: How Far is Too Far?

    Negotiation, we may say, ought strictly to be viewed simply as a means to an end; it is the road

    the parties must travel to arrive at their goal of mutually satisfactory settlement. But like other

    means, negotiation is easily converted into an end in itself; it readily becomes a game played for

    its own sake and a game played with so little reserve by those taken up with it that they will

    sacrifice their own ultimate interests in order to win it.1

    From the first step into law school and beyond, lawyers are taught to be zealous

    advocates for their clients, unwavering, and willing to do whatever it takes to win. Indeed, the

    preamble to the Model Rules of Professional Conduct explicitly states that [a]s advocate, a

    lawyer zealously asserts the clients position under the rules of the adversary system.2 This

    desire to win extends to lawyers behavior during negotiations. The preamble to the Model Rules

    further states, [a]s negotiator, a lawyer seeks a result advantageous to the client but consistent

    with requirements of honest dealings with others. 3 Whether attorneys employ truthful or

    deceptive negotiation tactics, however, largely depends on the individual.4

    1 Lon L. Fuller, Anatomy of the Law 128 (1968).

    2 MODEL RULES OF PROFL CONDUCT, Preamble [2]; Notably, comment 1 to Model Rule 1.3 which used to

    reference to a lawyers duty to act with zeal in advocacy upon the clients behalf was deleted because zealous

    advocacy is often invoked as an excuse for unprofessional behavior.

    3 MODEL RULES OF PROFL CONDUCT, Preamble [2].

    4 Andrea Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation

    Style, 7 Harv. Neg. L. Rev. 143, 185-189 (2002) (two types of negotiation styles: problem solving and adversarial).

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    Negotiation can best be described as a consensual bargaining process in which the

    parties attempt to reach agreement on a disputed or potentially disputed matter.5 Negotiation is

    used in almost all fields of law to resolve disputes in a variety of ways.6 Outside of a litigation

    context, negotiations are generally informal, less stressful, and cheaper than adjudication. Even if

    a lawsuit is pending, negotiations may still be taking place continually to reach a mutually agreed

    upon settlement.

    Can Lawyers Lie?

    The laws governing lawyers conduct in negotiations have remained largely unchanged

    since their initial adoption in 1983 by the American Bar Association.7 In addition, the rulesas

    stated in the Model Rules of Professional Conductgoverning negotiations have been almost

    universally adopted by each states highest court.8 A plethora of rules may govern negotiations in

    5 NEGOTIATION, Blacks Law Dictionary (10th ed. 2014).

    6 Douglas R. Richmond, Lawyers Professional Responsibilities and Liabilities in Negotiations, 22 Geo. J.

    Legal Ethics 249, 249-50 (2009).

    7 History ABA Model Rules of Professional Conduct (pre-2002), LEGAL INFORMATION INSTITUTE,

    https://www.law.cornell.edu/ethics/aba/2001/history.htm (last visited Jan. 16, 2017).

    8 Topical Overview Index of Narratives, LEGAL INFORMATION INSTITUTE,

    https://www.law.cornell.edu/ethics/comparative/index.htm#4.1 (last visited Jan. 16, 2017). Note that New Yorks

    rules are based on the previous Model Code and California has its own rules.

    See also, Joan C. Rogers, Cal. Rules Redo Marries Borrowed Rules With Old and New, BLOOMBERG BNA,

    https://www.bna.com/cal-rules-redo-n73014444653/ (last visited Jan. 16, 2017). Interestingly, the California

    legislature is currently in the midst of adopting all of the rules governing negotiation as laid out by the American Bar

    Association.

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    certain situations including: ABA Model Rules 1.2(a), 1.2(d), 1.3, 1.4, 1.6, 3.1, 3.3(a), 3.4, 4.1,

    4.3, 4.4(a), and 8.4(c). The most relevant rules governing negotiation are Rule 4.1 and 8.4(c).

    Rule 8.4(c) broadly prohibits dishonesty, fraud, deceit, or misrepresentation in any aspect

    of a lawyers professional life.9

    Rule 3.3 may also apply in some situations during negotiations and it overlaps with Rule

    8.4(c). Model Rule 3.3 prohibits a lawyer from knowingly making a false statement of fact or

    law or failing to disclose controlling legal authority to a tribunal.10 This rule does not require that

    the false statement of fact or law be materialunlike Rule 4.1 discussed in detail below. Rule

    3.3 may come into play in a negotiation setting where a judge mediates settlement negotiations.

    If the judge mediator asks a party a fact, under Rule 3.3, your options are seemingly limited to

    either telling the truth or respectfully declining to answer.11

    Rule 4.1 more narrowly states that in the course of representing a client, while

    communicating to a third person, a lawyer shall not knowingly make a false statement of

    material fact or law or fail to disclose a material fact when disclosure is necessary to avoid

    assisting a criminal or fraudulent act by a client, unless disclosure is protected by attorney-client

    privilege.12 In addition, the prohibitions on misrepresentations of material facts or law apply

    equally in the context of all types of settlement negotiations, whether conducted privately by

    9 MODEL RULES OF PROFL CONDUCT, r. 8.4(c) (2016).

    10 MODEL RULES OF PROFL CONDUCT, r. 3.3(a-b) (2016). Note before the 2002 amendments to the ABA

    Model Rules, Rule 3.3 prohibited lawyers from making false statement of material fact or law. Many states have

    opted to keep their respective Rule 3.3s to cover only material facts or law.

    11 For an example, see Richmond, supra note 4, at 286. Judge, with all due respect, I dont think I have to

    tell you my strategy. But, out of respect for you, I will say that I think we can settle this case for less than a million.

    My client and I would like to get this done now for $750,000. Please reiterate that offer to the plaintiff.

    Alternatively, you may say something like, Respectfully judge my client does not want to pay more than $750,000

    to settle, or my client shouldnt have to pay more than $750,000.; See also A.B.A. Formal Op. 06-439 (2006). 12 MODEL RULES OF PROFL CONDUCT, r. 4.1(a-b) (2016).

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    parties or with the assistance of a neutral.13 If these rules applied literally, both parties would

    have a hard time doing anything but telling the whole truth during negotiations. However, the

    ABA, scholars, and case law have clarified the application of this rule to the context of

    negotiation.

    False Statements of Material Fact or Law, Prohibited

    According to the Ethical Guidelines for Settlement Negotiations published by the ABA

    Litigation Section a lawyer must comply with the rules of professional conduct and applicable

    law during the course of settlement negotiations . . . and must not knowingly make a false

    statement of material fact (or law) to a third person [in the course of negotiating or concluding a

    settlement].14 That said, the ABA guidelines allow for certain kinds of puffery or posturing

    during settlement negotiations. 15 Statements about a partys willingness to compromise or

    resolve a dispute, a partys value placed on the subject of the case, the strength or weakness of a

    partys factual or legal positions or case, and a partys goals or objectives all qualify as allowable

    embellishments under Rule 4.1, not material misrepresentations.16

    13 ABA Comm. on Ethics & Profl Responsibility, Formal Op. 06-439 (2006). The formal opinion states that

    the ethical principles governing lawyer truthfulness do not permit a distinction to be drawn between the caucused

    mediation context and other negotiation settings and [t]he Model Rules do not require a higher standard of

    truthfulness in any particular negotiation contexts; nor is a lower standard of truthfulness warranted because of the

    uniqueness of the mediation process.

    14 ABA Section of Litigation, Ethical Guidelines for Settlement Negotiations, guidelines 3.3.1 and 4.1.1

    (2002).

    15 Id.; MODEL RULES OF PROFL CONDUCT, r. 4.1 cmt. 2 (2016) Under generally accepted conventions in

    negotiation, certain types of statements ordinarily are not taken as statements of material fact. Comments which fall

    under the general category of puffing do not violate this rule.

    16 Richmond, supra note 4, at 268.

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    Express Misrepresentation of Fact

    Model Rule 4.1 subsection (a) states, In the course of representing a client a lawyer shall

    not knowingly . . . make a false statement of material fact or law to a third