Hinderks Examines Relationship Between Legal Ethics, Deal Negotiations in The Legal Intelligencer

02.09.2023

Stinson LLP's Legal Ethics & Professional Responsibility Chair Mark Hinderks authored a column for The Legal Intelligencer, "Honesty in Negotiations? Do the Ethics Rules Require or Expect it?" The column concerns the importance of attorneys being truthful in their interactions with clients, courts and opposing parties, specifically when attorneys negotiate business deals and conduct a back-and-forth numbers dance.

"The apparent tension between truthfulness in dealing with others and the back-and-forth way that negotiations between humans have occurred across time and cultures is not directly addressed by the letter of any of the Model Rules, but is dealt with in a comment to Rule 4.1, Truthfulness in Statements to Others," Hinderks writes. "What the comment recognizes is that based on the way that people have negotiated for eons, no reliance should be or is placed on these types of statements [about price], i.e., that it is not truth being sought in negotiations over price, but a deal."

Hinderks notes that negotiating deals is somewhat of an exercise in semantics. He emphasizes that, as an attorney, language is important and one should not directly or specifically lie about one's intentions; instead, one should only speak in terms of what they are willing or intend to offer. He also notes that attorneys should be mindful of their obligations under the applicable law to avoid criminal and/or tortious misrepresentations.

Hinderks leads the firm's Legal Ethics & Professional Responsibility practice. He is the author of Dear Ethics Lawyer, a twice-monthly newsletter with questions and answers concerning legal ethics, and a co-founder and presenter of "Ethics for Good," a twice-annual stage show which uses humor, skits and real-world scenarios to teach legal ethics to lawyers. Hinderks has presented more than 125 programs on legal ethics over the past 30 years, has authored many articles and handbook chapters on legal ethics, and has been deeply involved in professional organizations with legal ethics and professional responsibility as their focus.

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