By Eric Gillett
A few years ago, I was involved in a hotly contested case representing a defendant whose employee allegedly caused millions of dollars in property damage. We were well along preparing the case. Mediation was scheduled in four weeks. We had strategically held in our pocket a strong brief that Plaintiff’s employees had spoliated important evidence. Our plan was to file that brief at the close of discovery, which was coming in two weeks. I was taking a well-earned break from the practice, sitting on a beach in Hawaii, when I received a call from my partner who had just attended a deposition of a witness in our case. He informed me that this witness had just directly contradicted critical statements made by our client in discovery.
In the next three minutes, I heard information that, if believed by a jury, materially damaged our liability defenses, undercut a key damages theme, and exposed a prior statement by our client as incomplete, or worse, untrue. Every litigator eventually faces some version of this moment. The question is not whether the facts are bad. It is whether you can still mediate effectively without violating the Washington Rules of Professional Conduct.
In Washington, the starting point is to resist two equal and opposite mistakes: panicked over-disclosure and strategic denial. A lawyer is not required to volunteer every harmful fact merely because mediation is imminent. Washington RPC 4.1 expressly recognizes that, while a lawyer must be truthful in statements to others, the lawyer generally has no affirmative duty to inform an opposing party of relevant facts. At the same time, RPC 4.1 also warns that misrepresentation can occur not only by outright lies, but by adopting another’s false statement or by making a partially true statement or omission that is the equivalent of an affirmative false statement. That distinction is the center of the problem. The ethical line is not between full confession and tactical silence; it is between permissible advocacy and material deception.
The first conversation must be with the client, and it must happen immediately. Washington RPC 1.4 requires the lawyer to reasonably consult with the client about the means by which the client’s objectives are to be accomplished, to keep the client informed, and to explain the matter sufficiently to permit informed decisions. The rule also specifically requires counsel to discuss any relevant limitation on the lawyer’s conduct when the client expects assistance not permitted by the RPCs or other law. In practical terms, that means telling the client, calmly and clearly: I can continue to advocate for you zealously, but I cannot use false facts, I cannot repeat a materially inaccurate statement, and I cannot assist any criminal or fraudulent conduct. That conversation should identify exactly what was omitted, what was previously said, where it was said, and whether the new information changes only settlement value or also triggers a duty to correct something already in the litigation stream.
That last point matters because mediation does not occur in an ethical vacuum. If the undisclosed fact has never been represented to the other side in any way, the lawyer may have significant room to preserve confidentiality under RPC 1.6 while recalibrating strategy. Washington’s confidentiality rule broadly protects information relating to the representation. It also allows the lawyer to seek legal advice about the lawyer’s compliance with the rules. But RPC 1.2(d) provides the counterweight: a lawyer shall not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent. When the new information reveals that the client wants the lawyer to continue bargaining on a knowingly false factual premise, the issue is no longer mere strategy. The lawyer cannot become the delivery system for the client’s deception.
In our case, we immediately arranged for a conference call with our client and his personal counsel. So, while I continued to sit on a beach and watch whales breach in the distance, we had the client on the line as we explained the newly developed “problem.” As it stood, someone was either misremembering an event or was not telling the truth. In either event, our client’s credibility was on the line and our ability to advocate the client’s position effectively was compromised.
Washington RPC 3.3 adds another layer whenever the problem touches the tribunal. If the falsehood is lodged only in mediation, the lawyer’s primary focus will usually be RPC 4.1 and RPC 1.6. But if the misinformation has found its way into a pleading, affidavit, declaration, discovery response, deposition, or other adjudicative setting, counsel must evaluate the special duty of candor toward the tribunal. Washington RPC 3.3 prohibits false statements to the tribunal, prohibits offering evidence the lawyer knows to be false, and requires the lawyer to deal with material falsity through remedial steps. In Washington, if the lawyer has offered material evidence and later learns it is false, the lawyer must promptly disclose that fact to the tribunal unless disclosure is prohibited by RPC 1.6; and if confidentiality bars disclosure, the lawyer must make reasonable efforts to persuade the client to consent, with withdrawal under RPC 1.16 available if the client refuses. For the trial lawyer preparing to enter mediation, the practical lesson is simple: audit not just your negotiation position, but the entire case record.
So how does the lawyer move forward ethically while still trying to settle the case? We were driven to consider that question. And we did so by pivoting away from false factual advocacy to truthful strategic advocacy. Washington RPC 4.1, like the widely cited ABA guidance on negotiation, leaves room for ordinary bargaining posture. Statements about settlement goals, reserve calculations, acceptable ranges, and compromise positions are ordinarily not treated as statements of material fact. That meant we could still negotiate hard on value, risk, timing, cost, and business priorities. What we could not do is tell the mediator or opposing counsel that a known fact is true if it is not, or allow a prior affirmative factual representation to continue doing deceptive work if we knew it was materially misleading.
In some cases, you may need to change the script without announcing every weakness. If a mediation brief contains a material inaccuracy, revise it or correct it. If a talking point is no longer supportable, stop using it. If the mediator is carrying a message built on a false factual premise, call a timeout and reframe. Skilled mediators can work with honest ambiguity. Counsel can say, truthfully, that the case evaluation has changed because of issues affecting proof, witness credibility, or trial presentation. You can move the numbers because of litigation risk, collection risk, timing, legal complexity, jury unpredictability, or the client’s desire for peace. None of that requires gratuitously disclosing every damaging fact. It requires only that you stop affirmatively misleading anyone.
Washington’s Uniform Mediation Act provides useful but limited protection in this setting. Under chapter 7.07 RCW, mediation communications are generally privileged, not subject to discovery, and not admissible unless waived or an exception applies. But the statute also makes clear that evidence otherwise subject to discovery does not become protected merely because it was discussed in mediation. In other words, mediation confidentiality is not a laundering device for bad facts. It shields the communication; it does not magically alter the discoverability or admissibility of underlying evidence that exists outside the mediation room. Lawyers sometimes overestimate what mediation secrecy can accomplish. It can protect the negotiation process; it cannot erase independent ethical duties or the legal status of the facts themselves.
There will be cases in which the client refuses to allow any ethical correction in approach and instead insists that counsel keep pushing a false narrative. That is where Washington RPC 1.16 becomes unavoidable. Withdrawal is mandatory if continued representation will result in violation of the RPCs or other law, and permissive withdrawal is available where the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent or has used the lawyer’s services to perpetrate a crime or fraud. Withdrawal is not always the preferred outcome, especially on the courthouse steps. But if the alternative is continuing to transmit a material falsehood, withdrawal is not overreaction; it is professional self-preservation.
The broader point is that credibility remains a negotiator’s most durable asset. A bad fact will often reduce settlement value, but a credibility collapse can destroy it. Clients often disclose late because they are embarrassed, afraid, or convinced the case will implode if they tell the truth. Many do not realize that lawyers have more tools than a binary choice between concealment and surrender. The better response is disciplined recalibration: counsel the client candidly, identify what must be corrected and what may remain confidential, stop repeating any false factual proposition, preserve the client’s lawful negotiating space, and, if necessary, withdraw rather than participate in deceit. That approach honors the lawyer’s role as advocate without forgetting the equally important role recognized in Washington’s professional rules: the lawyer is also an officer of the legal system. When the truth arrives in the parking lot, the answer is not panic. It is ethics, judgment, and a fast strategic reset.
Practical Takeaways for Mediators and Advocates
- Separate bad facts from false statements. You usually need not volunteer every harmful fact, but you may not repeat or ratify a material falsehood.
- Talk to the client immediately under RPC 1.4 and explain the limits on what you can ethically say or do.
- Audit the entire case record — not just the mediation brief — for declarations, discovery answers, deposition testimony, and other statements that may require correction.
- Reframe negotiations around truthful risk, value, cost, timing, and business objectives rather than unsupported factual claims.
- Remember that mediation confidentiality protects communications, not otherwise discoverable facts.
- If the client insists on using your services to continue a fraud or material deception, analyze withdrawal under RPC 1.16.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator and arbitrator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at egillett@pregodonnell.com.
