Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation

Lawyers in Negotiation: Meeting Ethical Challenges and Maintaining Professional IntegrityMichael S. McGinnissDean, University of North Dakota School of LawUND Law Homecoming CLEFriday, October 14, 2019

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation “False words are not only evil in themselves, but they infect the soul with evil.” -- Socrates

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation “How praiseworthy it is for a prince to keep his faith, and to live with honesty and not by astuteness, everyone understands. Nonetheless one sees by experience in our times that the princes who have done great things are those who have taken little account of faith and have known how to get around men’s brains with their astuteness; and in the end they have overcome those who have founded themselves on loyalty.” ―Machiavelli

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation The practice of law is “the experience of making and remaking language under pressure.” --James Boyd White

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.1(a) “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 . . .”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.1, Comment “Statements of Fact” “Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category . . . .”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.1(a) “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 . . . .”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation North Dakota Rules of Professional Conduct Rule 4.1 and Comment “In the course of representing a client a lawyer shall not make a statement to a third person of fact or law that the lawyer knows to be false.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.1, Comment “Misrepresentation” “Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.1, Comment “Statements of Fact” “Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category. . . .”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Ethics Committee, Formal Op. 06-439 “. . . [A] lawyer may downplay a client’s willingness to compromise, or present a client’s bargaining position without disclosingthe client’s ‘bottom line’ position, in an effort to reach a more favorable resolution. Of the same nature are 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. Such statements generally are not considered material facts subject to Rule 4.1.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation “A crucial distinction is drawn between statements of lawyer opinion and statements of material fact. When attorneys merely expressed their opinions—for example, ‘I think the defendant had consumed too much alcohol’ and ‘I believethe plaintiff will encounter future medical difficulties’—they are not constrained by Rule 4.1. Opposing counsel know that these recitations only concern the personal views of the speakers.”—Charles B. Craver

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation “When puffing and bluffing is accomplished by making untrue statements, such as ‘My client will not accept anything less’ when you have good reason to believe that this is not the case, . . . you are lying. . . . That the law has some standard of what counts as a ‘material’ misrepresentation of fact is of no consequence to the prelegal description [of lying and deception]. . . . [T]he law does not determine what is or is not properly described as a lie.” -- Arthur Isak Applbaum

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.3 “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.3 [cont.] “The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ABA Model Rules of Professional Conduct Rule 4.3, Comment “Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation ALI Restatement (Third) of the Law Governing Lawyers § 103, Comment B: “Active negotiation by a lawyer with unrepresented non[-]clients is appropriate in the course of representing a client. . . . Lawyers should in any event be trustworthy.Moreover, by education, training, and practice, lawyers generally possess knowledge and skills not possessed by non[-]lawyers. Consequently, a lawyer may be in a superior negotiating position when dealing with an unrepresented non[-]client, who therefore should be given legal protection against overreaching by a lawyer.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation • CONCEPTS OF RISK • IN LAWYER NEGOTIATION • Informational Risks: Negotiation as a Game

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation CONCEPTS OF RISK IN LAWYER NEGOTIATION B. Moral Risks to Lawyer Integrity: Nothing But “Effectual Truth”?

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation CONCEPTS OF RISK IN LAWYER NEGOTIATION C. Moral Risks to Clients and Community: Relational Harms of Breaking Faith

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation VIRTUOUS NEGOTIATION: KEEPING FAITH WITH OPPONENTS, CLIENTS, AND COMMUNITY Judge Alvin Rubin “It is inherent in the concept of an ethic, as a principle of good conduct, that it is morally binding on the conscience of a professional, and not merely a rule of the game adopted because other players observe (or fail to adopt) the same rule.”

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation VIRTUOUS NEGOTIATION: KEEPING FAITH WITH OPPONENTS, CLIENTS, AND COMMUNITY A. Opponents: Respect for Other Persons

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation VIRTUOUS NEGOTIATION: KEEPING FAITH WITH OPPONENTS, CLIENTS, AND COMMUNITY B. Clients: Loyalty with Candor

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation VIRTUOUS NEGOTIATION: KEEPING FAITH WITH OPPONENTS, CLIENTS, AND COMMUNITY C. Community: Justice from Fair Processes

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation CONCLUSION

Thank you.

Breaking Faith: Machiavelli and Moral Risks in Lawyer Negotiation