Prevaricator, prevaricator! Your Drawers are Conflagrant!
William Blake is said to have written a poem, The Liar, which gave rise to the taunt “Liar, liar! Pants on Fire!” This is derived from the first stanza of Blake’s work:
“Deceiver, dissembler
Your trousers are alight
From what pole or gallows
Shall they dangle in the night?”
Little did Blake know, however, that this quatrain would have implications in mediations.
In the midst of negotiations, during a mediation, sometimes honesty is called into question. While one would think that basic social contract would dictate that parties (and their attorneys) be honest as they seek to resolve their differences, basic social contract would also lead us to believe that Flash Mobs would not devolve into Flash Robs. And, of course, when one side (or both) lies, settlement becomes so much harder to achieve.
Did you ever stop to realize, though, that lying during negotiations may have some serious ramifications? As in like “lose your licenses” ramifications? Ohio Rule of Professional Conduct 4.1 specifically states that “[i]n the course of representing a client, a lawyer shall not knowingly … make a false statement of material fact to a third person.” In the comments to the Rule, the Supreme Court of Ohio notes that a lawyer is required to be truthful; misrepresentations of the truth can occur with partially true but misleading statements; by omissions that are the equivalent to affirmative false statements; or by affirming someone else’s statement.
While generally accepted conventions regarding negotiations (such as a party’s intentions as to an acceptable settlement) are recognized as not being misstatements of material facts, lying or stretching the truth too far are not. As Professor Joan Stearns Johnson of the University of Florida’s Levin College of Law notes “Notably, this comment to Rule 4.1 does not condone lying; rather, it states only that certain types of statements during negotiation could be considered puffery or something other than a statement of a material fact. Therefore, you still may not lie as to material facts.”
Many lawyers don’t understand where the line is drawn. What’s a generally accepted convention and what’s not? It is important to be cognizant of this. Many people falsely believe that the statements they make during a mediation are completely confidential and privileged. What they fail to recognize is that these rules of confidentiality or privilege do NOT apply when “the mediation communication is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation.” R.C. 2710.05(A)(6).
In other words, lie during negotiations and you could be answering to the Disciplinary Counsel.
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