Don’t Call My Bluff The Ethics of Negotiation

Don’t Call My BluffThe Ethics of Negotiation

James H. GilliamBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

Telephone: 515-242-2446Facsimile: 515-323-8546

E-mail: gilliam@brownwinick.com

Disputes (Generally) Settle

• Most prior to commencement of litigation• Many post-litigation settlements occur

through private/court-sponsored mediation

Dispute Settlement

• Requires a frank assessment of parties’ risk

• Risk assessment often requires communication from opposing parties and counsel

Typical Negotiation Topics

• Damage Valuations• Existence/Strength of Evidence• Existence/Credibility of Witnesses• Existence/Strength of Legal Position• Settlement Position Authority

Iowa Rules of Professional Conduct

Rule 32:1:6 Confidentiality of Information

“Because of confidentiality prohibitions, a lawyer may generally refuse to provide information without breaching any duty. However, once the lawyer undertakes to provide information, that lawyer has a duty to provide the information truthfully.”

Hansen v. Anderson, Wilmarth, 630 N.W.2d 818,

825 (Iowa 2001)

IRPC 32:4:1 Truthfulness in Statements to Others

“In the course of representing a client a lawyer shall not

knowingly:

(a) Make a false statement of material fact or law to a third person; or

(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 32:1:6.”

IRPC 32:4:1 Does Not Limit

• False statements made unknowingly• False statements about immaterial matters• False statements not of law or fact

IRPC 32:4:1 Comment on “Statements of Fact”

Certain expressions are not “statements of fact” for purposes of IRPC 32:4:1

- “estimates of price or value placed on the subject of a transaction” and

- “party’s intentions as to an acceptable settlement of a claim”

IRPC 32:4:1 cmt[2]

“Material” Not Defined in Rule/Comment

Restatement (Second) of Torts

• Reasonable person would “attach importance to the existence or nonexistence in determining a choice of action in the transaction in question; or

• Maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable man would not so regard it.”

IRPC 32:4:1 and Typical Negotiation Tactics

• A party in a negotiation often understates willingness to make concessions to compromise a dispute

• A party in a negotiation also might exaggerate or understate the strengths and weaknesses of a factual or legal position

ABA Formal Ethics Opinion 06-439

• Such understatements or exaggerations, often called “posturing” or “puffing”, are statements on which the other party to the negotiation ordinarily would not be expected justifiably to rely

• Puffery is distinguishable from false statements of material fact

Permitted Puffing

“If we do not agree on price, we will find an alternate supplier”

Permitted Puffing (cont.)

“My client insists on receiving $100K to settle these claims”

Prohibited Factual Misstatements

“This benefit will cost the company $100/employee” – when lawyer knows cost is $20/employee

Prohibited Factual Misstatements (cont.)

“We have three co-workers of the plaintiff who witnessed her theft of company property” – when no witnesses exist or such existence is unknown

Prohibited Factual Misstatements (cont.)

“My client’s bottom line/my settlement authority is $X”

ABA Formal Ethics Opinion 93-370

A lawyer may downplay a client’s willingness to compromise, or present a client’s bargaining position without disclosing the client’s “bottom line” position, in an effort to reach a more favorable resolution

When the Judge is the Mediator

IRPC 31:3:3

Candor toward the Tribunal

“Tribunal” Defined• A court, an arbitrator in a binding arbitration

proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.

• Legislative body in adjudicative capacity as neutral officer rendering judgment.

IRPC 1.0(m) definition

IRPC 32:3:3 “Tribunal” Defined More Broadly

Includes when the “lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.” IRPC 3.3 cmt[1]

IRPC 32:3:3 Governs Court-Supervised Negotiations

Rule 3.3 governs before Tribunals, including court-supervised settlement negotiations.

See ABA Opinions 06-439 and 93-370 and IRPC 2.4 cmt [5]

Obligation to Tribunal under IRPC 32:3:3 More Extensive than Outside Tribunals Under 32:4:1

Duty to Remedy

• Must correct a false statement IRPC 32:3:3(a)(1)• Disclosure of false evidence required

IRPC 32:3:3(a)(3)• Remedial measures required IRPC 32:3:3(b)

Duty of Candor Overrides ConfidentialityIRPC 32:3:3 (c)

Practice Tips

“In my opinion …”

Practice Tips (cont.)

“We predict …”

Practice Tips (cont.)

“We are confident …”

Practice Tips (cont.)

“Your investigation will reveal …”

Practice Tips (cont.)

Remember: “No” is a complete sentence

Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (641) 628-8494

DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.