Patent Law Practice Center

Misrepresenting the Client’s “Bottom Line”: Permitted Puffery? Or Prohibited Deceit?

Written by Lisa A. Dolak , Angela S. Cooney Professor of Law, Syracuse University College of Law and Practice Center Contributor.

Of course, lawyers are required to observe the applicable rules of ethics in the context of negotiations, as in other settings.  However, just how those rules should be interpreted in particular situations is sometimes the subject of significant debate.  This is certainly true when the issue is whether the negotiating lawyer is free to affirmatively represent the client’s “bottom line.”

ABA Model Rule 4.1(a) provides the relevant guidance.  It provides that “[i]n the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person.”  However, the commentary to Rule 4.1 defines what is a “fact” for purposes of negotiation.  Specifically, according to Comment 2:

This Rule refers to statements of fact.  Whether a particular statement should be regarded as one of fact can depend on the circumstances.  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 an acceptable settlement of a claim are ordinarily in this category . . .. (more…)