Don’t Call My Bluff The Ethics of Negotiation

1. Don’t Call My BluffThe Ethics of Negotiation James H. Gilliam BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-242-2446 Facsimile: 515-323-8546 E-mail: gilliam@brownwinick.com

2. Disputes (Generally) Settle • Most prior to commencement of litigation • Many post-litigation settlements occur through private/court-sponsored mediation

3. Dispute Settlement • Requires a frank assessment of parties’ risk • Risk assessment often requires communication from opposing parties and counsel

4. Typical Negotiation Topics • Damage Valuations • Existence/Strength of Evidence • Existence/Credibility of Witnesses • Existence/Strength of Legal Position • Settlement Position Authority

5. Iowa Rules of Professional Conduct Rule 32:1:6 Confidentiality of Information

6. “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)

7. IRPC 32:4:1 Truthfulness in Statements to Others “In the course of representing a client a lawyer shall not knowingly: • 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.”

8. IRPC 32:4:1 Does Not Limit • False statements made unknowingly • False statements about immaterial matters • False statements not of law or fact

9. 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]

10. “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.”

11. 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

12. 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

13. Permitted Puffing “If we do not agree on price, we will find an alternate supplier”

14. Permitted Puffing (cont.) “My client insists on receiving $100K to settle these claims”

15. Prohibited Factual Misstatements “This benefit will cost the company $100/employee” – when lawyer knows cost is $20/employee

16. 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

17. Prohibited Factual Misstatements (cont.) “My client’s bottom line/my settlement authority is $X”

18. 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

19. When the Judge is the Mediator IRPC 31:3:3 Candor toward the Tribunal

20. “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

21. 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]

22. 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]

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

24. 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)

25. Duty of Candor Overrides Confidentiality IRPC 32:3:3 (c)

26. Practice Tips “In my opinion …”

27. Practice Tips (cont.) “We predict …”

28. Practice Tips (cont.) “We are confident …”

29. Practice Tips (cont.) “Your investigation will reveal …”

30. Practice Tips (cont.) Remember: “No” is a complete sentence

31. Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (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.