Negotiation Versus Tribunal Candor

Negotiation Versus Tribunal Candor

A lawyer owes different duties to different listeners. Across a bargaining table, Rule 4.1(a) forbids a lawyer representing a client to knowingly make a false statement of material fact or law to a third person, and the sections above have measured how far that bar reaches.¹ The measure favors the advocate. A negotiator may posture about value and settlement limits, and truthfulness does not oblige the lawyer to volunteer anything, because literal honesty and transparent frankness are simply not the same.²

That latitude depends on who is listening. An opposing party expects one side's version of events, can test it, and can answer with a contrary position. A judge occupies a different position: a neutral decision-maker who learns about the case from the lawyers who appear and who decides on that basis. A lie to a judge therefore does more than distort one party's bargaining position. It corrupts the process by which the court reaches a binding decision.

Rule 3.3(a)(1) answers with a prohibition that resembles Rule 4.1(a) and reaches further. A lawyer shall not knowingly "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."³ The second clause adds an express duty to correct what the lawyer has already said. The 1983 text quoted in Virzi limited even the first clause to a false statement of "material fact or law," so the wording of that clause varies with the version of the rule.⁴

Before a tribunal, a lawyer must do three things that Rule 4.1(a) does not require:

• correct any false statement of material fact or law the lawyer previously made to the tribunal;⁵
• disclose mandatory legal authority in the jurisdiction, even when it cuts against the client;⁶ and
• take reasonable remedial measures on coming to know that material evidence the lawyer offered is false.⁷

Rule 3.3 also forbids the lawyer to offer evidence the lawyer knows to be false.⁸ Every one of these duties turns on knowledge: the rule speaks of what a lawyer does "knowingly" and of evidence the lawyer "knows to be false."

Even before a tribunal, the duty falls short of full candor. A lawyer may not lie to the court, but truthfulness remains the rule, and the ethics rules demand fuller disclosure only in narrowly defined situations. Mandatory adverse authority is one of them.⁹ The narrowness has a reason. Truth and rightfulness are frequently disputed in litigation, and a rule requiring the lawyer to disclose anything that might undercut the client's account would put the lawyer in the position of presuming to judge his own client.¹⁰

Confidentiality marks the sharpest difference between the two settings. In negotiation, the duty to disclose a material fact to avoid assisting a client's crime or fraud gives way whenever Rule 1.6 prohibits the disclosure, which is why the earlier section on client crime or fraud asked what Rule 1.6 permits. Before a tribunal, the order reverses. The version of Rule 3.3 that Virzi quotes provides that the lawyer's duties continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.¹¹ Rule 3.3(c) confirms that the remedial obligations may include disclosing to the tribunal confidential information protected by Rule 1.6.¹²

The two rules differ because the two audiences differ. A lawyer who keeps a confidence at the bargaining table leaves the opposing party where it already stood, on guard and free to investigate. A lawyer who keeps silent before a court leaves the judge relying on counsel's word about matters that counsel alone may know. The rule does not let confidentiality excuse that silence.

A lawyer in private settlement talks stands elsewhere. Talking up the client's position as an advocate and declining to say how low the client will go involves only an opposing party who expects advocacy and discounts it, and no tribunal is misled, so the conventions taught earlier in this chapter apply. Nothing in that tolerance follows the lawyer into the courtroom. A bluff about a bottom line is excused because the person hearing it knows to treat it as a bluff, and a judge who asks a direct question has no reason to apply that discount.

A single matter can carry a lawyer from one setting into the other, and Virzi shows how. The lawyer there settled a case that required court approval without telling opposing counsel or the court that the lawyer's client had died.¹³ The court quoted the ABA's comment on Rule 3.3: "There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation." It observed that the comment does not define or identify such circumstances.¹⁴

Approval changes the setting. A signed contract between private parties involves only the other side, who may ask questions and investigate, and silence there is measured against the baseline that a lawyer need not volunteer information. A settlement that needs a judge's approval asks the tribunal to act, and the tribunal knows only what counsel tells it. A plaintiff's death goes to the validity of the proceeding. A judge who approved a settlement for a plaintiff who was no longer living would act on a premise that the one person who knew better had left uncorrected, and silence that produces that result looks like the circumstance the ABA comment describes: a failure to disclose that operates as an affirmative misrepresentation.