Lawyers' Professional Responsibilities and Liabilities in Negotiations

Lawyers in all practice areas routinely negotiate on clients' behalf. Despite the fact that almost all lawyers routinely negotiate in their practices, many of them regrettably do not apprehend their related professional responsibilities and liabilities. There probably are several reasons for this, but two stand out. First, the negotiation process varies by context and subject matter, and thus calls for seemingly different rules or rules stated only at a very high level of generality. Second, negotiation is inherently paradoxical because, on the one hand, lawyers must be fair and truthful, while on the other, they must facilitate their opponents' inaccuracte assessment of their positions. In any event, this article examines the subtle problems and situations that crop up in negotiations and that implicate lawyers' professional duties. In doing so, it focuses on lawyers' duty to communicate, duty of confidentiality, duty of truthfulness to third parties, and duty of candor to tribunals. In addition to examining lawyers' duties from a professional responsibility perspective, it analyzes their potential civil liability arising out of negotiation behavior.