A few weeks ago, Andrew Manitsky and I presented a CLE at the Young Lawyers Division meeting in Montreal. We used both hypotheticals and real-life scenarios to explore the contours of the duty of candor. Including all phases of the litigation process — pre-suit negotiations, depositions, mediations, and court appearances — we touched on puffery, paltering, and misrepresentation by omission/silence. One of our goals was to challenge attendees to consider how they’d react if in the shoes of our imaginary and actual lawyers.
Turns out, we were on to something.
Yesterday, the ABA Journal published Are you completely honest in negotiations? “Game frame’ lawyers are less likely to correct misimpressions, new study says. Here’s the opening sentence:
- “Lawyers who see negotiation as a game to win are less likely to be completely honest with opposing counsel, according to a new study published in the Negotiation Journal.”
Researchers at Carnegie Mellon University, the Naval Postgraduate School, and Duquesne University conducted the study. According to this press release,
- “The study found that the more lawyers viewed negotiation through a game frame—that is, as an adversarial context with arbitrary and artificial rules—the less willing they were to honestly disclose information to correct misimpressions by opposing counsel. Lawyers with higher levels of moral character were less likely to apply a game frame to their decisions and were more willing to negotiate honestly.”
The study interests me.
For one, after outlining the relevant rules, the researchers stated:
- “The acknowledgment of the importance of lawyers’ moral judgment in the rules governing lawyers’ conduct may come as a surprise. Contrary to popular perception, lawyers need not put aside their own moral values in blind pursuit of a client’s goals. Rather, they are tasked with striking what at times can be a difficult balance between client advocacy and honesty. This point is made explicitly in the Preamble to The Rules of Professional Conduct: ‘As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.’”
Against the backdrop of negotiation, mediation, and Rules 4.1 and 8.4(c), the notion that lawyers “are tasked with what at times can be a difficult balance between client advocacy and honesty” is exactly what Andrew and I tried to convey in Montreal.
For another, the study included scenarios strikingly similar to those that we used in our seminar. I’ve included the scenarios below the picture. With that, and to avoid the body of this post becoming TL/DR, I’ll end here, leaving it to you whether to explore the scenarios.
As always, be careful out there.
Scenarios:
For the questions, participants were asked to respond:
- Extremely Unlikely
- Unlikely
- About 50% Likely
- Likely
- Extremely Likely
Full results and charts can be viewed here. They’re very difficult for me to decipher. So, I’m going to cut and paste responses as reported by the ABA Journal.
Scenario 1
You represent plaintiff. During settlement negotiations, opposing counsel’s comments make clear that they think your client can no longer work. In fact, your client is able to work, and you have never claimed that your client is not able to work.
- How likely are you to continue the negotiation without correcting the misimpression?
- How likely are you to take direction solely from your client about whether to correct opposing counsel’s misimpression?
- How likely are you to advise your client of your intent to disclose that plaintiff can work to opposing counsel and withdraw representation if your client refuses?
- How likely are you to disclose plaintiff can work to opposing counsel and document the disclosure without asking your client first?
As reported by the ABA Journal:
“56.3% of the lawyers said they were unlikely or extremely unlikely to correct the misimpression, while 24.4% said they were likely or extremely likely to do so.”
Scenario 2
You represent client. Client was an at-will employee fired from a large corporation without explanation. You are negotiating severance pay, a noncompete clause and other issues. You negotiated a resolution that included client’s agreement not to work for a list of companies for two years. When the opposing counsel presents the settlement document, it omits one of the companies on the noncompete list.
- How likely are you to continue to signatures without informing opposing counsel of the omission?
- How likely are you to take direction solely from your client about whether to inform opposing counsel of the omission?
- How likely are you to advise your client of your intent to inform opposing counsel of the omission and withdraw representation if your client refuses?
- How likely are you to inform opposing counsel of the omission without first asking your client?
As reported by the ABA Journal:
- “72.9% of the lawyers said they were unlikely or extremely unlikely to correct the omission, while 14% said they were likely or extremely likely to do so.”
Scenario 3
You represent client in a disability claim. During mediation, the mediator informs you that the defendant has proof that your client is not disabled. The mediator has seen the video and tells you that it shows your client working around the house and yard. In a private discussion, client informs you that client has an identical twin who often visits client home to help with physical chores—including landscaping, roof repair, car mechanics and moving furniture.
- How likely are you to keep the existence of the twin brother hidden from both the mediator and the opposition team, and go to trial with the plan to turn the “smoking gun” evidence of the defense into a dramatic “gotcha” moment in court?
- How likely are you to keep the existence of the twin brother hidden from both the mediator and the opposition team, but ask the mediator to determine if the defense will meet a specific demand amount if your client is able to discredit the defense’s video?
- How likely are you to disclose information about the twin brother and his work on the house to the mediator and allow the mediator discretion about whether to disclose this information to the opposition team?
As reported by the ABA Journal:
- 81.7% of lawyers said they were unlikely or extremely unlikely to wait for a “gotcha” trial moment, while 5.6% said they were likely or extremely likely to do so.
- 8% of the lawyers said they were unlikely or extremely unlikely to ask the mediator whether the defense would meet a specific demand amount if they can discredit the video, while 30.8% said they were likely or extremely likely to do so.
- 1% of the lawyers said they were unlikely or extremely unlikely to inform the mediator about the twin brother to disclose to the defense at the mediator’s discretion, while 44.6% said they were likely or extremely likely to do so.
- 2% of the lawyers said they were unlikely or extremely unlikely to disclose the twin brother directly to the opposition team, while 42.1% said they were likely or extremely likely to do so.