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What about the defense lawyer who knows about the aortic aneurism. When that actual case arose, the defense attorney was not only under no obligation to disclose the negative information - he was under an ethical duty not to volunteer that information because of the confidential nature of the medical news obtained from his own expert witness. Several years ago, the American Bar Association modified Model Rule 1.6 covering confidentiality to indicate that lawyers may - but are still not required to - disclose confidential information when such disclosure is necessary to prevent death or serious bodily injury. Although some people thought this modification should have required disclosure in such circumstances, mandatory disclosure was rejected. While defense attorneys possessing such negative information cannot ethically misrepresent the operative facts - either directly or through partially truthful statements they know are misleading - they still don't have to volunteer that information. I personally would have preferred a rule that required such disclosure, both because of the moral implications involved and to avoid possible economic harm to attorneys who do the right thing and lose business to lawyers who promise not to disclose such information unless specifically directed to do so by their clients.

IV. Conclusion

Although some misrepresentations are considered acceptable "puffing," others are clearly inappropriate. It is not always easy to draw the line between statements the other side does not have the right to rely upon and those they may consider sacrosanct. When my students ask about the proper demarcation, I tell them to ask how they would feel if their opponent were to make the misrepresentation they are contemplating. If they would consider their opponent dishonest, then they should refrain from such conduct themselves. I like to leave them with a quote from Mark Twain: "Always do right. This will gratify some people and astonish the rest."


Charles B. Craver is the Freda H. Alverson Professor of Law at George Washington University. He is author of Effective Legal Negotiation and Settlement (5th ed. 2005 Lexis Pub.) and The Intelligent Negotiator (Prima/Crown 2002). He is coauthor of Alternative Dispute Resolution: The Advocate's Perspective (2nd ed. 2001 Lexis Pub.) Over the past thirty years, he has taught negotiating skills to over 75,000 attorneys and business people throughout the Untied States, and in Canada, Mexico, Puerto Rico, England, Germany, Austria, and the People's Republic of China. He can be reached at ccraver@law.gwu.edu

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December 2005