The duty not to mislead in negotiation

I would be very surprised if the most commonly committed species of misconduct were not engaging in misleading conduct in negotiation. But there is very little written about it. Justice John Byrne of the Supreme Court of Queensland, sitting in the Legal Profession Tribunal, in Legal Services Commissioner v Mullins [2006] LPT 012 (see next post) footnoted a number of articles on the topic, most of which have hyperlinked citations:

  • Barry R Temkin, “Misrepresentation by Omission in Settlement Negotiations: Should There Be a Silent Safe Harbour?”, (2004) 18 The Georgetown Journal of Legal Ethics, 179;
  • American Bar Association Standing Committee on Ethics and Professional Responsibility, Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation, Formal Opinion 06-439, 12 April 2006;
  • Scott R Peppet, “Lawyers’ Bargaining Ethics, Contract, and Collaboration: The End of the Legal Profession and the Beginning of Professional Pluralism”, (2005) 90 Iowa Law Review 475,
  • John Lande, “Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs”, (2002) 50 UCLA Law Review 69;
  • Carrie Menkel-Meadow and Michael Wheeler, What’s Fair: Ethics for Negotiators (2004) Jossey-Bass, San Francisco (n.b. the link is to a book review);
  • Selene Mize, “Is Deception in Negotiating Unprofessional?”, [2005] The New Zealand Law Journal 245.

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