With no one to edit my language here :-), let’s call a spade a spade. My thanks to John and Art for starting a really interesting conversation about puffery. Teaching both ethics and negotiation, the crossroads of “puffing” in negotiation is something that I get to talk about twice. And it drives me crazy. It’s just a nice name–a nice label–for lying. Lying, through and through.
There are so many problems with puffing. First, the lines of “puffing” are supposed to follow convention–which completely subjective. So the lines are unclear and and they continue to move. You can lie about your client’s intent. “They would never accept that offer” is okay. But you better bring the offer back to your client. You can vaguely lie about whether you have an alternative to accepting their offer. “We have other people interested in this shopping mall” is okay. But you can’t be too specific about the lie. “We have another buyer showing up tomorrow to give us the list price.” will get you in trouble. And the winner of confusion by far is the interplay between 1.6–keeping client informational confidential–and 4.1–you shall reveal information to prevent fraud. We know from Art’s work (and class interactions–I run DONS every year in my ethics class), that law students and lawyers mess this up regularly and at alarming rates. (For more on this see Art’s study here, my article on running DONS in China here, and an article from Art, Peter Reilly and me on teaching negotiation ethics here.)
Second, following the rules on puffing is bad negotiation advice. Even when you ‘can’ lie according to the rules, it is most often really bad strategically to do so. And by the rules allowing “puffing” (let along that 1.6 and 4.1 are in different sections of the ethics codes and should be rewritten to follow one another), we create the illusion that this is something lawyers are supposed to do.
I actually think the rules should be cleaner–no lying. If you are asked a question you do not want to answer–for example “how low will you go?” “do you have other options?” or “what does your client plan on doing with this property?” –don’t answer it. Don’t lie. Chances are it will be obvious you are lying, or the truth will come out later anyway, or you did not actually need to lie but think it’s easier. This line drawing–and the fact that puffing is so fuzzy–is exactly what gets lawyers into trouble in the first place.
I know I would enjoy teaching negotiation strategies on how to deflect awkward questions more than the lines of puffing. I would also feel a lot better about our profession. Because the fact that puffing sucks often leads the public to think the same way about lawyers.
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I agree with the original post and the comments that stand for the belief that puffery is wrong and should not provide lawyers or bargainers with an excuse to lie. There should be open disclosure in commercial interactions or the option to avoid answering the question if doing so would reveal confidential or protected information. By avoiding the question, the other party should be able to discern the truth, at least the partial truth, about the question that was asked. Although the rules provide vague guidelines for when puffery crosses the line, there is a larger problem that continues to confuse bargainers and skew the ethical lines. There are a number of popular TV shows (Pawn Stars and other sales shows) that consistently feature two parties setting final offers that are easily altered, presenting a number of exaggerated concerns with the upcoming sale/purchase, and all other forms of puffery imaginable. A viewer lacking training on the ethical rules regarding puffery could easily be confused into thinking that there are no limits to puffery and any conversation taking place during a negotiation is protected from having the other party rely on it. This common misperception has been thrust onto society and has created confusion regarding the “acceptable” amount of puffery. This problem could be avoided if the rules were stricter against puffery as the original comment suggested.
Since no one has yet commented on the title, I assume I am the only one here that enjoys a good word-play now and again… Be that as it may, if I might offer a contrary position, I believe that puffery is both helpful and necessary for negotiations. Fortunately, the world is not black-and-white and from early on in their careers, law students are encouraged to seek out the gray areas. These gray areas are what gives lawyers their jobs; if not for these tricky situations, disputes would not need lawyers and we would all have to find careers with lower rates of alcoholism. The English language is a wonderful instrument that nonetheless can convey different meanings to different people based on their experiences, understandings of situations, and personal biases and desires. When a person is misled through puffery, there is as likely a chance that the person is misled through their own mental processes as when the original statement-maker is intending to mislead. As parity between parties is often quite hard to achieve, allowing room for parties to stretch and at times embellish is important for preserving some safety for those who make statements. The world cannot be a place of true and false and the Model Rules rightly protect lawyers in situations where advocating for a client is more important than arriving at conclusions of such constructs, which are themselves largely a matter of perception. As is the case with word-play, the flexibility of language can both amuse and deceive depending on perception.
I believe puffery is born out of necessity for those in a weaker bargaining position. Especially when facing an opposing party that is a competitive negotiator looking to “crush” the negotiation. It should not be an issue if the parties take a collaborative approach since each party should understand that the end goal for each party is to be better off than before. This means being forthcoming with any weaknesses many be of value so that any weaknesses could be bolstered.
“Integrity is doing the right thing, even when no one is watching.” I think this quote sums up my position on this topic. The bottom line is that no job is so important that one should compromise their personal values. The public perception of lawyers is already a poor one and it is up to current law students to enter into the market and change the perception. Moreover, lying is a slippery slope that will lead to other unethical behavior. If you lie and it helps your client in a negotiation one month, what will you do the next month? Simply put, say no to puffery! Take pride in doing things the right way regardless of the outcome.
While I agree failure to use puffery during negotiations will leave you at a disadvantage, I believe that it should be eliminated as much as possible. As Professor Schneider explained above, the rules of puffery are completely subjective. As a participant in the DONS exercise, I can tell you I was shocked by some of the behaviors of my fellow classmates. Lying and withholding the truth came far too easy to some. Public perception of lawyers is generally unfavorable. Unfortunately, a few bad apples always ruin the bunch. Maybe the courts should impose stricter penalties on lawyers who push the boundaries of “exaggeration.” This may create a lasting culture of integrity within negotiations and reflect more favorably on the profession as a whole.
Puffery is highly problematic, particularly in situations in which the other party is asking whether your client would be interested in something and you respond that they would not, even though you know that they are. This is allowed, but could lead to problems for your client because it is possible that because you said that your client is not interested, that particular point of interest will not be offered again. That could harm your client. Furthermore, if you bring it up later, the other party may not be willing to have it as an option anymore. It also diminishes your credibility with the opposing party. While it may still be puffery depending on the situation, it would be better to answer that you need to consult with your client first or that you are unsure of whether your client would be interested simply to keep that option open and retain some credibility. Overall, negotiations would benefit more from truth or non-answers instead of outright lies, which are often what puffery amounts to.
I agree with Ben. While I agree that puffing is lying and should be avoided, it is a useful tool when used properly. Your responsibility as an attorney is to advocate for your client’s interests. Exaggerating the truth, to an extent, allows you to meet your client’s interests, make viable offers, and generate creative solutions. For example, suppose the opposing side wants an apology, but your client is not apologetic. Puffing and offering the apology anyways can have a significant impact on the negotiation process, moving it forward. Our responsibility as attorneys would be to make sure we do not cross the fine line and engage in professionally unethical behavior. Deflecting questions instead of puffing is a great option. However, a perceptive negotiator would recognize a deflection and may conclude that either you do not have the information he seeks or you are hiding something. Either conclusion could be detrimental to the negotiation process.
While I agree that puffery walks a very fine line in relation to ethics, I do believe it is a necessary tool for an individual to use in a negotiation. In most situations puffing is a bad negotiation tool to use; it causes distrust between parties, can severely weaken a party’s bargaining power if the puffing is not executed properly, and can result in unethical behavior if the puffing goes too far. Unfortunately if a negotiator eliminates their use of puffery, it will put the person at a distinct disadvantage. Deflecting a question is a very good tool to use instead of puffing, but a negotiator with good listen skills will be able to spot when a party is attempting to deflect a question. Puffery on the other hand, if executed properly, make it much more difficult for a party to spot. In a perfect world puffery would not exist; we would be able to be completely honest with everyone, and negotiations would end with each party mutually benefiting the other. Unfortunately, the realist in me knows this harmonistic negotiating environment is not possible. We have to use puffery because some parties will take advantage of our honesty and decision not to. If it were up to me, I could walk into a negotiation, state what is wanted from my client, have the other side trust that my offer is the best offer I am willing to make, and choose to accept, decline, or offer a more creative equally benefiting solution for both our parties. In reality, there is always going to be some amount of distrust (even if it is minute) between negotiating parties. Since distrust is going to always be present in a negotiation, puffing has some service as a tool in negotiations.
While I agree that puffery walks a very fine line in relation to ethics, I do believe it is a necessary tool for an individual to use in a negotiation. In most situations puffing is a bad negotiation tool to uses; it causes distrust between parties, can severely weaken a party’s bargaining power if the puffing is not executed properly, and can result in unethical behavior if the puffing goes too far. Unfortunately if a negotiator eliminates their use of puffery, it will put the person at a distinct disadvantage. Deflecting a question is a very good tool to use instead of puffing, but a negotiator with good listen skills will be able to spot when a party is attempting to deflect a question. Puffery on the other hand, if executed properly, make it much more difficult for a party to spot. In a perfect world puffery would not exist; we would be able to be completely honest with everyone, and negotiations would end with each party mutually benefiting the other. Unfortunately, the realist in me knows this harmonistic negotiating environment is not possible. We have to use puffery because some parties will take advantage of our honesty and decision not to. If it were up to me, I could walk into a negotiation, state what is wanted from my client, have the other side trust that my offer is the best offer I am willing to make, and choose to accept, decline, or offer a more creative equally benefiting solution for both our parties. In reality, there is always going to be some amount of distrust (even if it is minute) between negotiating parties. Since distrust is going to always be present in a negotiation, puffing has some service as a tool in negotiations.
Simply put, I agree. I think that this condoned, almost expected lying is one of a host of pervasive and insidious “professional” behaviors that give regular people a bad opinion of lawyers. We should carefully measure what we’re willing to trade for our own professional reputation and personal morals. There should be a higher standards, and those standards should be truth and fairness–same as kindergarten.