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Negotiation And Transactional Matters Outline

LLM Law Outlines > Professional Responsibility Outlines

This is an extract of our Negotiation And Transactional Matters document, which we sell as part of our Professional Responsibility Outlines collection written by the top tier of NYU School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Professional Responsibility Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

06. Negotiation and Transactional Matters
P.403-424
Lawyers as negotiators Rules 1.2(d), 4.1, 8.4(a)(c)
 In negotiation, no judge, no party under oath,
 Party has no duty to share what it learns, lawyer with greater knowledge/ better informed than opposing lawyer can exploit it to her client's advantage.
 But negotiations also has limits

Rule 8.4(c)
o It is professional misconduct for a lawyer to... engage in conduct involving dishonesty, fraud, deceit or misrepresentation…

Rule 4.1 [The NY rule has only part (a)]
o In the course of representing a client a lawyer shall not knowingly:
 (a) make a false statement of material fact or law to a third person; or
 [Third person can include opposing lawyer or client]
 (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
 [If non-disclosure constitute assisting crime/ fraud by client  lawyer must disclose.
But need not disclosure if 1.6 prohibit such disclosure]
Rule 4.1 comment [3]
o Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client's crime or fraud takes the form of a lie or misrepresentation

Ordinarily, a lawyer can avoid assisting a client's crime or fraud by withdrawing from the representation.
o Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like.
o In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud.
o If the lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.

Policy: if the only way to keep from assisting crime of fraud of client is to disclose  lawyer can use permitted

1.6 exceptions to confidentiality to disclose (or lawyer's silence may have assisted it)

NY Rule 1.6(b)(3)
o A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:…
 to withdraw a written or oral opinion or representation previously given by the lawyer
 and reasonably believed by the lawyer still to be relied upon by a third person,
 where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or
 is being used to further a crime or fraud…

Negotiation issues for lawyers mainly arise in one of three ways:
1) Bad client problem P.409

• Lawyer learned that client is a fraudster and unwittingly have been assisting her fraud, or maybe she unintentionally made a material false statement and won't now correct it

• Whether lawyer's quiet withdrawal without warning violate the professional conduct rules

• Loyalty and confidentiality vs. interest in avoiding/ minimizing harm to innocent victims of a client's illegal conduct or to courts and other tribunals

• KYC in law firms - since lawyers are to trust their clients, should know their client

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