PLEASE NOTE:  Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published

SUBJECT:

Proposed Formal Opinion Interim No. 12-0007 (Puffing in Negotiations)

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.

DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 12 0007 considers: When an attorney is engaged in negotiations on behalf of a client, what conduct constitutes permissible “puffing” and what conduct constitutes improper false statements of material fact?

The opinion interprets rule 3-700(B)(2) of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068(b), (c), and (d), 6106 and 6128.

The opinion digest states: Statements made by counsel during the course of negotiations are, generally, subject to those rules prohibiting an attorney from engaging in deceit or collusion.  (See Business and Professions Code sections 6068(d) and 6128(a)). Thus, it is improper for an attorney to make false statements of material fact during the course of a negotiation. However, statements about a party’s negotiating goals or willingness to compromise may include allowable “puffery” provided those statements do not contain false statements of material fact. 

At its Jan. 24, 2014 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 12 0007 for a 90 day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT: 

Proposed Formal Opinion Interim No. 12-0007

SOURCE: 

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE: 

5 p.m., May 19, 2014

DIRECT COMMENTS TO:

Audrey Hollins
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2167
Fax: 415-538-2171
E-mail: audrey.hollins@calbar.ca.gov