A fascinating article comparing the US and Australian positions by Robert Angyal and Nicholas Saady: Legal Lying.
Rather than carefully curating lawyers’ social media profiles, we suggest that a better approach to building public trust in lawyers would be revocation of the American Bar Association rule that allows lawyers to lie when negotiating. Yes, astonishingly, a disciplinary rule promulgated by the ABA (Model Rule 4.1(a)) allows lawyers to lie about non-material facts when negotiating on behalf of a client.
The very existence of that rule seems problematic. When you look at its legal meaning (or lack of), it becomes even more problematic. Despite several attempts to define and limit the circumstances in which the rule allows US lawyers to lie, its meaning remains unclear.
Mediation has become very common in the USA and Australia—at least partly because of court-mandated mediation initiatives. Lawyers often represent clients at mediations, so the increased use of mediation makes it important to understand how both jurisdictions regulate lawyers’ advocacy on behalf of their clients during mediation. This article comparatively analyzes how professional standards regulate the truthfulness of lawyers’ advocacy during mediation in Australia and the United States. It focuses on uniform regulation in those jurisdictions. Part One will comparatively analyze the relevant regulations in Australia and the United States, and the types of obligations contained in those regulations—for example, obligations of truthfulness and good faith. Part Two will examine the impact of these standards in shaping lawyers’ conduct during mediation in Australia and the United States and suggest some measures that might be taken by regulators to more effectively control lawyers’ advocacy in mediation.