Be careful to follow the rules when negotiating for your client.
In representing a client, how far can I puff or embellish the facts to try to resolve a case with a good result?
Puffing or embellishing is sometimes a time-honored settlement negotiation tactic, but there are limits to what one can do as an attorney. There are two Rules of Professional Conduct that may be impacted. The first is Rule 4.1 of the Rules of Professional Conduct, titled “Truthfulness in Statements to Others.” That rule notes that in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person. Under that same rule, a lawyer cannot fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting criminal or fraudulent conduct.
Obviously, the first section about making a false statement of material fact or law to a third person would be the one at issue by this question.
Also, Rule of Professional Conduct 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Although Rule 8.4(c) could be involved if there is true misrepresentation, often puffing or embellishment impacts more on Rule 4.1, as noted above.
Under Rule 4.1 in the Comment, the following is noted concerning discussions or negotiations: “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 acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where non-disclosure of the principal would constitute fraud.”
The comment appears to allow some leeway.
The word “knowingly” in Rule 4.1(a) can be violated by a lawyer being reckless in terms of the facts. In other words, a lawyer cannot just ignore everything or put their head in the sand.
But where is the line crossed? For instance, in negotiating with the district attorney in a criminal case, the lawyer cannot misrepresent that he has eyewitnesses who will verify the client’s version if, in fact, that’s not true.
Making false accusations of specific medical expenses when one knows the exact amount also could be a problem.
Another example of violating this rule is misleading persons as to one’s status. For instance, one can’t send an investigator to interview someone, and have the investigator pretend to be someone else. In a landlord/tenant dispute, an investigator cannot pretend to be someone interested in renting the property if it misleads the person they are speaking to. Lawyers are not allowed to participate in that kind of misconduct.
The same could be said about using Facebook or some form of electronic communication. One cannot pretend to be a friend of a person to gain information if, in fact, that is not the case.
Therefore, all lawyers in negotiating or discussions have to be careful and draw a line. It is OK to embellish a little and to puff a little and try to put the best factual foot forward, but misleading or misstatements that are false or misidentifying who one is, are not acceptable conduct for an attorney. Further, an attorney’s staff must also comply with these rules and the lawyer has to ensure their staff complies with the Rules of Conduct under Rules 5.1, 5.2 and 5.3. These rules involve supervision by lawyers of subordinate lawyers and nonlawyers.
Therefore, although negotiations are an art form in many ways, the art form is limited by reality and the Rules of Professional Conduct. Every lawyer should recognize where the line is drawn and carefully adhere to it. That is the essence of being a professional.
You can solicit to represent a client, but there are limitations in domestic violence cases.
Can I continue to communicate with persons who have been sued, and let them know I am available to represent them?
Lawyers are allowed to solicit clients by mail and electronically as long as it done appropriately and not in person or in person electronically. Rule of Professional Conduct 7.3 allows those communications to persons a lawyer discovers has a need for legal representation. But recently the Pennsylvania Supreme Court has adopted an amendment to Rule 7.3. That amendment is 7.3(4) and reads as follows: “A lawyer may contact, or send a written communication, to the target of the solicitation for the purpose of obtaining professional employment unless: (4) the communication is a solicitation to a party who has been named as a defendant or a respondent in a domestic relations action. In such cases, the lawyer shall wait until proof of service appears on the docket before communication with the named defendant or respondent.”
There is a new comment to Rule 7.3, Comment 8. The purpose of this rule is set forth in the comment. The reason notification is required is to reduce any risk of violence or a violent confrontation between the parties before service has been made. In other words, if a divorce complaint has been filed but no service has not been made, then the party would assume the other side would not know about it. If a lawyer picks up the filing of the divorce complaint the day it is filed and sends a letter to the opposing party about representation, then that sued person may become enraged and go to the house of the person who filed the domestic action. That person would not be expecting the other party to appear since no service had been made. Apparently, this directed-mail type of solicitation has at times resulted in violence.
Sometimes people will file a domestic action and are not sure what to do. Unfortunately, then the other side receives 10, 20 or 100 letters from lawyers who do domestic cases, and of course, privacy is no longer available.
Every lawyer should be aware now that there is a limitation in domestic relation cases to looking at a docket and sending letters of representation to the opposing party. Rule 7.3(4) should be carefully reviewed.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.