Ethics are slippery little critters. So are morals and rules of law. Amoeba-like, they squish and twist and turn, depending upon the circumstances and environments they find themselves in.
Being quizzical about them, I have often found myself trying to round them up, contain them and shape them into discernible forms. This has not always been easy. It has been particularly difficult, at times, in the practice of law and, more specifically for purposes of this article, during negotiations.
The heart of the problem, as I see it, is that there are no clearly defined "ethics of negotiation" and such rules as there are regarding honesty and duties to the court and others in communication are conflicting. The difficulty inherent in the rules and in the "conventions" that govern our negotiation behavior spring from the tensions that exist between doing what is pragmatic and realistically required in competently representing our clients and the morals, ethics and rules that govern our behavior.
Likewise, the difficulty is inherent in the tensions between the poles of winner-take-all competition and cooperation in an adversarial system.
The American Bar Association and our own Washington Rules of Profes-sional Conduct flat out prohibit "conduct involving dishonesty, fraud, deceit or misrepresentation." [RPC 8.4(c)] In our Attorney's Oath of Office we swore we would "employ . . . only those means consistent with truth and honor."
Yet, we also are less restrictively told we "shall not knowingly . . . make a false statement of material fact or law to a third person" [RPC 4.1] or to a "judge" [RPC 3.3(a)(1)]. And while we are admonished that we must not knowingly "fail to correct a false statement of material fact or law previously made to a tribunal by the lawyer" [RPC 3.3(a)(2)], we have no such admonishment to correct statements by others unless "such disclosure is necessary to avoid assisting a criminal or fraudulent act by a client." And in the latter instance, such disclosure arguably is mandatory only to prevent bodily harm.
Washington's Rules of Professional Conduct were derived from the ABA's Model Rules of Professional Conduct in 1985. They have been revised from time to time, but it was only this September that the ABA Comments to the rules were added to Washington's RPCs by our Supreme Court.
These Comments advise, "Whether a particular statement should be regarded as one of fact can depend on the circumstances," and "Under generally accepted conventions in negotiations, certain types of statements [like statements of value or of intent as to an acceptable settlement] ordinarily are not taken as statements of material fact." That's quite a concession to the realities of the conventions of negotiation, like car buying and selling, "advertising" or over-optimistically posturing the case to our own interests as a first step in negotiation.
The ABA Comments, and others like them found in the Restatement (Third) of the Law of Professional Conduct (incorporated on this subject in the Com-ments), open the door to myriad decision-making conflicts in any given negotiation situation. They also leave wide the door to considerable debate about external enforcement of the rules, given the acknowledgment of the "conventions of negotiations" and just what these conventions mean in any given context.
Examples abound of common instances of what is probably perceived as permissible negotiating conduct. "What do you think your case is worth?" "How will you prove that?" "Is that a legitimate argument?" "How do you think the judge will rule, or what will the jury return?" are all questions we are clearly allowed to dodge under the rules, if nothing else. Misrepresentative answers are probably also permissible because to violate the rules we have to "knowingly" make a misrepresentation. "Knowingly" in the Terminology section of our RPCs "denotes actual knowledge of the fact in question," and while "knowledge may be inferred from circumstances," statements of opinion (according to the Comments and Opinions) fall outside the definition and thus the rule.
When you think about it, don't the "generally accepted conventions in negotiation" almost require some bluffing and puffing, overstatement and gamesmanship if we are to be "competent" in our representation as required by RPC 1.1? Are we going to be required to - in fact, don't most judges and other lawyers almost always expect that we will - "stretch the truth" (read lie?) just a little bit? Or to "puff" the value of our client's case, to bluff a bit about what the evidence is and what it will show, what will be admitted and not, and so on?
The rule requiring "zealous representation" still present in the ABA Model Rules has been modified to one of "conscientiously and ardently" asserting our client's rights and positions in the Washington rules (see, Revision to the Preamble [of] A Lawyer's Responsibili-ties). But doesn't such conscientiousness and ardor, especially when coupled with the rule insisting we must "provide competent representation," require the skill and facility culturally common in transactional negotiations and games like chess and poker, where thrust, counter-thrust, feint, pretend, lead, mislead, deceive and misrepresent are common ploys?
Let's be frank. We live in an adversarial world, and in law we live in an adversarial system. While it may not be true that "All's fair in love and war," aren't the bounds of propriety and absolute truth and candor rightfully loosened just a little bit, or a lot, in negotiations depending on the circumstances and who has the best argument based on whose perception of the facts and law?
To add to the mix, it is to be noted that the ABA's Standing Committee on Ethical and Professional Conduct earlier this year published its advisory Formal Opinion 06-439. The opinion was written to "discuss the obligation of a lawyer to be truthful when making statements on behalf of clients in negotiation, including . . . caucused mediation." This opinion candidly admits that it "is not unusual in a negotiation for a party, directly or through counsel, to make a statement in the course of communicating a position that is less than forthcoming." Further, "a party might exaggerate or emphasize the strengths, and minimize or deemphasize the weaknesses, of its factual or legal position."
While the foregoing is perhaps artfully worded to indicate what "a party" might do, the opinion also affirms that "overstatements or understatements of the strengths or weaknesses of a client's position in litigation or otherwise, or expressions of opinion as to the value or worth of the subject matter of the negotiation" are "of the same nature" as other things a lawyer might do. This includes like downplaying a client's willingness to compromise "in an effort to reach a more favorable resolution." [Formal Opinion 06-439, page 6.]
The Committee also asserts that the broad language of Rule 8.4(c) (prohibiting "conduct involving dishonesty, fraud, deceit, or misrepresentation") is subsumed by the less-demanding language of Rule 4.1. This is because "if Rule 8.4(c) were interpreted literally as applying to any misrepresentation, regardless of the lawyer's state of mind or the triviality of the false statement in question, it would render Rule 4.1 superfluous, including by punishing unknowing or immaterial deceptions that would not even run afoul of Rule 4.1." [Formal Opinion 06-439, page 2, fn. 2]
When all is said and done, it seems to me that the door is open pretty wide to just about any kind of gamesmanship a particular lawyer might want to engage in, barring outright lies and material misrepresentations, known to be such, and even in such circumstances, probably with lots of what the formal opinions have called "wiggle room."
One caveat, however, is this: Just as weighing any conduct ultimately will be done by hindsight, it seems prudent to contemplate the outcome to our reputations and the higher aspirations of our ethical standards when considering what to do in any given circumstance. Both from a self-protective point of view and from the ethics imbedded in our own hearts, it is likely that under most circumstances discretion is the better part of valor. Thus, when we are confronted in the negotiation game with just how we ought to play it, perhaps we should err on the side of my parents' favorite admonition on the subject, "Never tell a lie."
John Shaffer is now a full-time mediator, conflict counselor and negotiation trainer. He has been litigating and trying cases for over thirty years and is soon to receive his Master of Laws Degree in Dispute Resolution from Pepperdine University School of Law. Additional information is available at CreativeSettlements.com. He can be reached at 206-729-0081 or at jcslaw1@aol.com.
