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Book Chapter

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This article addresses the general question of truthfulness in the process of negotiation, as that question is faced in Rule 4.2 of the Model Rules of Professional Conduct. The obligation to behave truthfully in negotiation is embodied in the requirement of Rule 4.2(a) that directs the lawyer to “be fair in dealing with other participants.” The article then presents five cases which show that one does not and cannot intend that a negotiator be “truthful” in the broadest sense of that term. It would be unfortunate, therefore, for the rule that requires “fairness” to be interpreted to require that a negotiator be truthful in every respect and in all of his dealings. It should be read to allow at least those kinds of untruthfulness that are implicitly and explicitly recognized as acceptable in his forum, a forum defined both by the subject matter and by the participants.