American lawyers are allowed to lie when mediating. Why?

Lawyers and mediators together at table

Astonishingly, a disciplinary rule promulgated by the American Bar Association, Model Rule 4.1(a), allows lawyers to lie about non-material facts when negotiating for a client. It is binding in all States except California. Despite attempts to define when the Rule allows US lawyers to lie, its meaning remains unclear.

Co-author Nick Saady and I analyze Model Rule 4.1(a) and the attempts to explain what it means in a just-published law review article, Legal Lying?, 21 Pepperdine Dispute Resolution Law Journal 355 (2021). We conclude that they contain no coherent statement of principle and leave lawyers and the public no wiser about when US lawyers can legally lie.

The justification for allowing lawyers to lie about non-material facts seems to be that the recipients of the lies won’t rely on them. So why bother lying? Better to tell the truth, all the time, and gain a reputation for trustworthiness. On the other hand, if the Rule permits more substantive and thus more damaging false statements, how can it possibly be justified? This is the inescapable dilemma generated by a rule permitting lawyers to tell lies. It explains why fresh attempts to explain the Rule’s meaning would be as futile as all the existing ones.

Allowing lawyers to lie does enormous damage to the credibility and the moral authority of lawyers. And the Rule has a devastating effect on mediations: If you know that the lawyer for your opponent is allowed to legally lie to you in some, ill-defined, circumstances, the only sensible thing to do is to assume they are lying all the time and to disbelieve everything they tell you. So, in addition to generating mistrust of lawyers, the Rule also makes mediations highly inefficient, because the parties cannot take anything they are told at face value.

Our article concludes that there is a simple solution to the problems generated by Model Rule 4.1(a): Require lawyers to tell the truth, all the time. Rather than advocating PR to improve the public image of lawyers, the American Bar Association should heal this self-inflicted wound by revoking the Rule.