December 2012 Bar Bulletin
Candor and Truthfulness in Alternate Dispute Resolution
By Eric B. Watness
An attorney's fundamental duty to tell the truth is mandated by the Rules of Professional Conduct (RPCs), but the line between impermissible falsehood and legitimate advocacy is often unclear. In the area of alternate dispute resolution, advocates are permitted to shape communications to varying degrees depending on whether the forum is an arbitration hearing or a mediation session with more limited communications required in adjudicatory proceedings. The following strives to more clearly explain the attorney's duty in each of these different contexts.
Candor toward the Tribunal
Under RPC 1.0(m), the arbitrator is defined as a "tribunal" for the purposes of attorney ethics rules. Even though an arbitrator conducts informal proceedings without the trappings of an austere courtroom and black robe, the same duties owed to a judge are also owed to the arbitrator.
This makes sense because judges and arbitrators - third-party neutrals called upon to decide a controversy - are susceptible to misguided appeals. Therefore, the RPCs proscribe making false or prejudicial assertions in an adjudicatory proceeding and unauthorized ex parte contact with the decision maker.
As set forth in RPC 3.3:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by Rule 1.6;
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