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.