Out of Bounds – Negotiations Ethics
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.
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
