Out of Bounds – Negotiations Ethics
An interview with Prof. Carrie Menkel-Meadow
In negotiations, an attorney is generally focused on achieving their client's goals, but which tools of negotiation can they ethically use? Professor Carrie Menkel-Meadow of UC Irvine Law School addresses this question in a detailed discussion about the ethical limits of legal negotiation. Menkel-Meadow explores the evolution from a traditional “zealous advocacy” model to modern standards with greater emphasis on diligence and honesty. She highlights the Model Rules of Professional Conduct which prohibit material misrepresentations while allowing certain tactics like puffing and bluffing and even certain types of aggressive strategies.
Professor Menkel-Meadow emphasizes the crucial distinction between permissible strategic behavior and outright dishonesty in legal negotiations. While lawyers may engage in some degree of exaggeration, they must avoid making false statements about material facts or laws. The discussion also delves into the complexities of omissions and the circumstances under which a lawyer might be required to disclose information. Menkel-Meadow highlights that while certain omissions are permissible, deliberate deception can lead to accusations of fraud, which are regulated by both ethical rules and state laws. She also underscores the importance of reputation in negotiations. While aggressive lawyers may attract clients who value that approach, those who consistently practice fairness and honesty can build long-term professional credibility, ultimately benefiting their clients across multiple matters.
The discussion also addresses contentious aspects of legal negotiation, such as bullying tactics and threats. Although ethical rules explicitly prohibit threats of criminal action in civil cases, other forms of aggressive behavior, are not directly barred and may even be effective in certain circumstances. While acknowledging some value to these techniques, Menkel-Meadow advocates for a negotiation culture that balances assertiveness with ethical responsibility, arguing that efficient and enduring agreements are best achieved through trust and transparency.
Additional Resources
Model Rules (Summarized in part)
Model Rule 1.2(a) Lawyer must consult with client as to the means of representation and may act as impliedly authorized.
Model Rule 1.3 Duty to act with reasonable diligence and promptness in representing a client.
Model Rule 1.4(a) Lawyer must reasonably consult with the client about the means to accomplish client’s objectives.
Model Rule 3.3(a) Lawyer may not make a false statement of fact or law or fail to correct a false statement to a tribunal.
Model Rule 3.3(b) Lawyer must disclose to the tribunal legal authority known to be directly adverse to the client’s position and not disclosed by opposing counsel.
Model Rule 4.1(a) Lawyer may not knowingly make a false statement of material fact or law.
Model Rule 4.1(b) Lawyer may not knowingly fail to disclose a material fact to avoid assisting a client’s criminal or fraudulent act.
Model Rule 8.4(c) Professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Full text of the Model Rules of Professional Conduct
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About Prof. Carrie Menkel-Meadow
“Negotiating itself is really important.… We wouldn’t pass legislation, we couldn’t live with our neighbors, we couldn’t parent our children or take care of our parents — we couldn’t do any of those things if we didn’t negotiate.”
Carrie Menkel-Meadow is the Distinguished and Chancellor's Professor of Law at UC Irvine School of Law. Prior to joining the UCI Law faculty, she was a founding professor from Georgetown University Law Center, where she was the A.B. Chettle Jr. Professor of Dispute Resolution & Civil Procedure and Director of the Georgetown Hewlett Fellowship Program in Conflict Resolution & Problem-Solving (now Emerita). She was the faculty director of Georgetown’s Center for Transnational Legal Studies in London, and prior to that she was a Professor of Law at UCLA for 20 years – serving also as a professor in the Women's Studies program, Acting Director of the Center for the Study of Women, and Co-Director of UCLA's Center on Conflict Resolution. As a Fulbright scholar in 2007, Professor Menkel-Meadow taught and conducted research in Chile, Argentina and China. An international expert in alternative dispute resolution, including international dispute resolution, the legal profession, and legal ethics, clinical legal education, feminist legal theory, and women in the legal profession, Professor Menkel-Meadow has written and lectured extensively in these fields. Menkel-Meadow has written numerous books and more than 200 articles on dispute resolution and other subjects, including cause lawyering, women in the legal profession, legal ethics and international justice. She was awarded the 2018 American Bar Foundation’s Research Scholar award for her international work in dispute resolution, the legal profession and legal feminism. She has received numerous honorary doctorates for her work, both in the United States and in Europe.
