Every experienced litigator has said something along the lines of:

“My client will not go above that figure.”

Or:

“This is our final offer.”

Sometimes those statements turn out not to be entirely true.

Negotiation inevitably involves strategy. Parties withhold their true bottom line, test the other side’s resolve and adopt positions that may soften as discussions progress.

But a recent decision of the Solicitors Disciplinary Tribunal serves as a stark reminder that there is a line between legitimate negotiation tactics and professional misconduct. Cross it, and the consequences can be career-ending.

The case

The solicitor in question was struck off after misleading an unrepresented opponent about the status of court proceedings and then attempting to persuade a colleague to maintain the deception.

The opponent was told that proceedings would be issued. Subsequently, communications suggested that proceedings would be withdrawn if certain documents were signed.

There was one problem: no proceedings had ever been issued.

The SDT concluded that the conduct was dishonest and in breach of the solicitor’s obligations of honesty, integrity and maintaining public trust in the profession.

The result was the ultimate regulatory sanction – striking off.

So what makes this different from ordinary negotiation?

The answer lies in the distinction between position and fact.

Negotiators are generally entitled to be guarded about their client’s bargaining position.

A solicitor can legitimately say:

• “My client is not prepared to accept that offer.”
• “We consider our proposal to be reasonable.”
• “Unless matters are resolved, our client is considering legal action.”

These are statements of position, intention or opinion.

What a solicitor cannot do is misrepresent objective facts.

For example:

• Claiming proceedings have been issued when they have not.
• Suggesting a court hearing has been listed when it has not.
• Inventing evidence or witnesses.
• Misrepresenting the contents of a document.
• Creating a false impression about something that can be objectively verified.

The professional rules prohibit not only direct lies but also conduct that is misleading.

The danger of “everyone does it”

Many solicitors would accept that statements such as “this is the final offer” often form part of the negotiation dance.

Commercial parties understand that positions frequently change.

However, the closer a statement moves from negotiating rhetoric towards a factual representation, the greater the risk.

The regulator and the courts are unlikely to show sympathy for an argument that misleading conduct was merely a negotiating tactic.

As this case demonstrates, what may seem like a convenient shortcut in an attempt to pressure an opponent can rapidly become a question of honesty and integrity.

The practical lesson

The lesson for litigators is not that they must negotiate with complete transparency. If that were the case, very few disputes would ever settle.

Rather, solicitors should ask themselves a simple question before pressing send:

“Am I expressing a negotiating position, or am I representing a fact?”

The former is an accepted part of dispute resolution.

The latter must always be true.

For all the sophistication of modern litigation, the profession continues to run on a simple foundation: trust. Once honesty is compromised, everything else becomes difficult to defend.