Utah Bar Journal

While being a “zealous advocate” was a requirement of the Canons of Professional Ethics, that concept is no longer mandated. Variations of the phrase “zealous advocate” are currently relegated to mere aspirational statements in the Preamble to both the ABA Model Rules and the Utah Rules of Professional Conduct. In fact, “zealous advocacy” has not been a requirement of national lawyers’ codes since 1983; yet, this has not stopped lawyers from using the phrase or courts from extolling it. At least five Utah cases since 1988 have used the phrase “zealous advocate” or “zealous advocacy” – one civil case and four criminal matters. State v. Clark, 2005 UT 75, 124 P. 3d 235; State v. Harmon, 956 P.2d 262, 276 (Utah 1998); State v. Price, 909 P.2d 256, 259 (Utah 1995); State v. Holland, 876 P.2d 357 (Utah 1994); Error v. Western Home Ins. Co., 762 P.2d 1077, 1083 (Utah 1988) (concurring opinion).

Some believe that zealous advocacy has become too “zealous” and has resulted in an ill-mannered, overbearing, and unpleasant style of advocacy. The American Law Institute’s Restatement of the Law Governing Lawyers warns that zealous advocacy is not a synonym for hardball tactics in litigating or negotiating.

Underlying the concept of a zealous advocate is the ideal of a lawyer who asserts the client’s position to the extent permissible by the law, even if the client’s views and goals do not coincide with the lawyer’s personal, political, or social views. Some say that even the zealous advocate who is polite and courteous while protecting the client is merely a “neutral partisan” – a fighter who engages in a legal battle to protect the client regardless of the underlying moral principles that might otherwise influence the outcome. Others say that such roles allow lawyers to be “amoral technicians” – those who use the system for the client’s benefit without concern for whether the client’s moral views and the lawyer’s moral views are aligned.

But isn’t this too harsh a view of most lawyers? Aren’t most lawyers merely trying to achieve worthwhile goals for their clients? Of course they are. This does not mean, however, that the pursuit of a client’s interests frees a lawyer from moral tensions.

The tension that most lawyers face is not balancing their personal view of morality and justice with their clients’ goals; rather, the tension is between protecting client confidences and revealing the “truth.”

The Tension Between Client Confidences and the “Truth”
Client confidences are protected by the Utah Rules of Professional Conduct as well as applicable civil statutes, and for good reason. Lawyers cannot fully advise clients unless they know all the facts, and clients would be reluctant to reveal all the facts to their attorney unless they know that their confidences are protected. Yet, the protection of client confidences sometimes means that lawyers often cannot reveal the “truth” (assuming that there is an absolute, omniscient “truth”) and often cannot correct misapprehensions that others may have and erroneous conclusions that others may draw.

The more the public, the press, federal regulators, and others demand that lawyers have some type of professional obligation to reveal matters that can cause losses to others, the less client confidences can be protected. Conversely, the more protection we give to client confidences, the greater the chance that results perceived as “unjust” may occur because of the muzzle placed on lawyers by the client confidentiality rules.

One cannot fully protect both “truth” and “client confidences”; absolutely favoring one eviscerates the other. The greater the protection one gives to client confidences, the less “truth” lawyers are able to reveal, for any revelation of a client confidence is a breach of that protection. On the other hand, the more one seeks to have lawyers disclose information that may prevent losses to non-clients, the less likely it is that clients will fully provide all pertinent information to their lawyers. A situation in which clients may not completely confide their secrets to their lawyers may lead to lawyers taking positions at odds with what their clients know to be the facts.

What Can a Lawyer Do in Negotiations?
What are the primary issues in any negotiation? Key are (a) the value of the property or settlement or damages at issue, and (b) the extent of the lawyer’s authority. Yet, the comments to both the ABA Model Rule and Utah RPC 4.1 seem to define both of these issues as not “material” and thus not worthy of truthful disclosure.

Rule 4.1, relating to negotiations, differs from the rules regulating conduct before a tribunal. Utah RPC 4.1(a) prohibits a lawyer from making a “false statement of material fact.” The comments to Utah RPC 4.1, however, note that 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 .…” In other words, two of the most critical issues are defined away as being not “material,” and under the Rule there is no obligation to be truthful in statements about a fact that is not “material.”

Contrast Utah RPC 4.1 with Utah RPC 3.3(a) dealing with a lawyer’s obligation to a court: the latter mandates that a lawyer not make a “false statement of fact or law to a tribunal.” Note the absence of the word “material” in section 3.3(a). In other words, before a tribunal, a lawyer is cautioned against making a misstatement of fact, regardless of whether it is material, while in non-tribunal negotiations only “material facts” cannot be stated falsely. Further, before a tribunal, Utah RPC 3.3(a) prohibits a lawyer from making a false statement about the law, while RPC 4.1(a) says nothing about statements of law.

Why Disclose Anything You’re Not Compelled to Disclose?
The limited rules relating to negotiations, as opposed to the broader and more detailed rules relating to litigation, have been the subject of much commentary. Arguments have ranged from a defense of “puffing” as an effective and useful negotiation tactic to charges that even something as mild as “puffing” is, in essence, not merely a deflection of the truth but is, rather, a lie. There are those who contend that no law or code of conduct requires “fairness” in negotiations.

The development of the common law has been one of allowing enforcement of bargains made between experienced parties, even though one side has operated from a position of superior knowledge. Chief Justice Marshall, in Laidlaw v. Organ, 15 U.S. (2 Wheaton) 178, 179 (1817), held that there was no obligation to disclose facts that were “equally accessible to both parties.” In Laidlaw, the issue was that one party knew a key fact while the other did not. In those pre-telegraph times, the fact was that the Treaty of Ghent had been signed, meaning that the price of the tobacco over which the parties were bargaining was about to dramatically rise. Chief Justice Marshall enforced the deal that the parties had reached, endorsing the view that a negotiator may remain silent about a key fact in negotiations. Since the issue in Laidlaw related to something that would affect the price of the item being sold, arguably even RPC 4.1 would treat this as a fact that was not “material.”

Perhaps the UCC rules of good faith and fair dealing arose as a reaction to and a partial restriction upon the common law’s enforcement of the “tough bargaining” approach; yet, it seems that the comments to the Rules of Professional Conduct acquiesce to misstatements, silence, and even incorrect statements about facts that are deemed not “material” as long as no fraud is being committed and no law is being broken.

Laidlaw further shows the common law’s acceptance of misdirection. If one is not affirmatively asked a question, then remaining silent about a key (but not “material”) fact is apparently acceptable. Misdirection, after all, involves hiding your bottom line from the other side. It can include either silence or a true but incomplete statement of facts. No matter how it occurs, however, misdirection is always designed to lead the other party to an erroneous conclusion about the facts, about your true position, or both.

If misdirection is not illegal and is not prohibited by the Rules of Professional Conduct, then why shouldn’t we all do it? That is a moral and ethical question. Not “ethics,” as in what is permitted by the Rules of Professional Conduct, but ethics in the broadest sense. In fact, the words “ethics” and “ethical” do not appear in the black letter text of the Rules; rather, they are in the Preamble and comments. If the Rules permit lawyers in negotiations to puff, mislead, and make misstatements about facts that the public at large might consider both pertinent and critical (such as the value of the item over which the parties are negotiating), then some might argue it is a misnomer to refer to the Rules as a code of “ethics.”

The moral and ethical question that “misdirection” poses is whether, if you know that the other side is under a misapprehension or misunderstanding of what you have said (even if that misunderstanding accrues to your client’s benefit), you have a moral or ethical obligation to correct the other side’s misunderstanding, or whether you instead have a moral and ethical obligation to your client to obtain the best deal possible?

More than 2100 years ago, Cicero wrote about this very issue in his letters to his son, arguing that

holding things back does not always amount to concealment; but it does when you want people, for your own profit, to be kept in the dark about something which you know would be useful for them to know. Anyone can see the sort of concealment that this amounts to – and the sort of person who practices it. He is the reverse of open, straight forward, fair and honest: he is a shifty, deep, artful, treacherous, malevolent, underhanded, sly, habitual rogue.

Cicero, Selected Works, Translated by Michael Grant, Penguin Books, Copyright (1960), pp. 178-79.

It is this type of outcome, where sharp bargaining on behalf of one party obtains an advantage that would not otherwise be achieved without misdirection or silence on key issues, that can lead to a sense of injustice, no matter how “legal” the resulting agreement may be.

So, What Should a Lawyer Do?
There is no easy answer to the dilemma between (a) legally promoting the interests of our clients to the fullest extent permissible by law and (b) behaving in a manner that may be legal and that may not violate the Rules of Professional Conduct but which nevertheless raises difficult moral and ethical issues. What is clear, however, is that we should not be surprised if the public looks askance at lawyers and questions their “ethics” when even the ABA Model Rules seem to permit, in non-tribunal negotiations, misdirection, bluffing, and perhaps even lying (on “non-material” factual issues) in furtherance of the client’s interest.

There is a constant tension between our duty to represent our clients and our duty to the profession. There is a practical tension between our wanting to get the best deal possible for our side and the aspirational duty of ethical fair dealing. There is a discernible difference between conduct that is permitted outside of litigation and conduct that can lead to sanctions against lawyers during litigation.

I submit that, as difficult as these issues are, we as lawyers should strive to equate professionalism with ethics and to aspire, as the goal of the honorable legal profession, to have an even higher standard than the one under which our clients may operate. This view is reflected in Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F.Supp. 507, 512 (E.D. Michigan 1983), where the court noted that “[o]pposing counsel does not have to deal with his adversary as he would deal in the marketplace. Standards of ethics require greater honesty, greater candor, and greater disclosure, even though it might not be in the interest of the client or his estate.” This same view was espoused by Judge Alvin B. Rubin in his famous article, “A Causerie on Lawyer’s Ethics in Negotiations,” 35 La.L.Rev. 577, 589 (1975).

While the ABA has rejected the Virzi dictum that a duty of candor exists in negotiations, see ABA Formal Op. 94-387, Sept. 26, 1994, the moral question is whether Virzi and other commentators have the ethical high ground.
One may not agree with those who contend that the ethical basis of negotiations (in all non-tribunal actions) should be one of truth and fair dealing. One may not agree that lawyers should refuse to participate in or accept a result that is unconscionably unfair to the other side. Yet, if one considers the differences in the Rules requiring higher standards of conduct before a court than in non-tribunal negotiations, and if one considers the lawyer’s role as being more than a mere “neutral partisan” or “amoral technician,” then another approach may be possible.

Perhaps a more practical formulation is needed to guide us in ethical negotiations, and I suggest the following for your consideration: If we wouldn’t do something in a courtroom context, if we wouldn’t make a misleading statement in a settlement conference with a judge, and if we wouldn’t remain silent about a misstatement made by our client or partner during discussions in court chambers or in open court, then we shouldn’t do any of these things in non-litigation negotiations of any kind.

1. A portion of this paper consists of adaptations of the author’s prior publications, including: “The Ethics of Negotiations: Are There Any?” 56 Louisiana Law Review 447 (1995); “From Screens and Walls to Screams and Wails: A Selective Look at Screening Among the Various Ethics Rules and Cases and A Consideration of Some Unanswered Questions,” The ACREL Papers, Fall, 2001 (ALI-ABA); “Breaching the Protective Privity Wall: Expanding Notions of Real Estate Lawyers’ Liability to Non-Clients,” The ACREL Papers, Fall 2002 (ALI-ABA); “The Ethical Negotiator: Ethical Dilemmas, Unhappy Clients, and Angry Third Parties,” 26 The Construction Lawyer 12 (2006); “Labor Negotiations: Do Any Rules of Ethics or Professionalism Really Apply?” ALI-ABA Labor Seminar, Spring 2003, and “Ethics,” The Construction Lawyer, Fall 2006.