Negotiation: Lying or Puffing

The ABA recently issued an ethics opinion addressing false statements of material fact. The opinion attempts to distinguish between "puffing" in the context of negotiations and prohibited false statements of material fact:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a client may not make a false statement of material fact to a third person. However, statements regarding a party's negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation "puffing,"” ordinarily are not considered "false statements of material fact" within the meaning of the Model Rules.

From a practical standpoint, this distinction makes a great deal of sense. But I would hate to have to defend in court the ABA's justification that "consensual deception is intrinsic to the process" of mediation.

Thanks to Appellate Law and Practice for reporting this opinion.