Originally published in The King County Bar Association on December 12, 2012.
An attorney’s fundamental duty to tell the truth is mandated by the Rules of Professional Conduct (RPCs), but the line between impermissible falsehood and legitimate advocacy is often unclear. In the area of alternate dispute resolution, advocates are permitted to shape communications to varying degrees depending on whether the forum is an arbitration hearing or a mediation session with more limited communications required in adjudicatory proceedings. The following strives to more clearly explain the attorney’s duty in each of these different contexts.
Candor toward the Tribunal -
Under RPC 1.0(m), the arbitrator is defined as a “tribunal” for the purposes of attorney ethics rules. Even though an arbitrator conducts informal proceedings without the trappings of an austere courtroom and black robe, the same duties owed to a judge are also owed to the arbitrator.
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