A lawyer's duty of truthfulness in negotiations has long been one of the most controversial topics in professional ethics. This article deepens the existing controversy by arguing that the duties imposed on lawyers by Model Rule 4.1 are not only impossible to police in the negotiation context, but also counterproductive, for two reasons. First, drawing on the research of an array of social scientists, the article suggests that strict adherence to duties of truthfulness during negotiations may have a chilling effect on the exchange of information, thereby undermining the likelihood of reaching a successful outcome. Second, the article explains why the burden of truthful disclosure may fall particularly heavily on low income individuals, which in turn leads to outcomes that are arguably unfair.
An early draft of the Model Rules had elevated the goal of fairness in negotiation outcomes alongside the duty of truthfulness. However, such concern for fairness is missing entirely from the current version of Model Rule 4.1. This omission, in conjunction with Model Rule 1.8(e)'s prohibition on providing financial assistance to clients, suggests that the rules of professional conduct are not properly calibrated, as they fall particularly harshly on low-income litigants and the attorneys who represent them. The article concludes by suggesting a variety of methods to police truthfulness in negotiations more effectively, without negatively impacting outcomes for low income litigants.
