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
Proposed Formal Opinion Interim No. 12-0007 (Puffing in Negotiations).
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.
Proposed Formal Opinion Interim No. 12‑0007 considers: When an attorney is engaged in negotiations on behalf of a client, are there ethical limitations on the statements the attorney may make to third parties, including statements that may be considered “puffing” or posturing?
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 subject to those rules prohibiting an attorney from engaging in dishonesty, deceit or collusion. Thus, it is improper for an attorney to make false statements of fact or implicit misrepresentations of material fact during negotiations. However, puffery and posturing, such as statements about a party’s negotiating goals or willingness to compromise, are generally permissible because they are not considered statements of fact.
At its January 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. Subsequently, at its June 5, 2015 meeting, COPRAC revised the opinion in response to public comments received and, in further accordance with its Rules of Procedure, tentatively approved Proposed Formal Opinion Interim No. 12-0007 for an additional 90-day public comment distribution.
None
Proposed Formal Opinion Interim No. 12-0007
State Bar Standing Committee on Professional Responsibility and Conduct
5 p.m., September 23, 2015
Angela Marlaud Office of Professional Competence, Planning and Development State Bar of California 180 Howard Street San Francisco, CA 94105-1639 Ph. # (415) 538-2116 Fax # (415) 538-2171 E-mail: angela.marlaud@calbar.ca.gov