M＆A 협상 변호사의 진실의무

Lawyers are ethically required not to tell a lie. On the other hand, it will be a breach of confidentiality if a lawyer reveals her client’s lie. While a lawyer’s untruthfulness in judicial procedure is strictly monitored and sanctioned by the court, lawyer’s misbehavior in negotiation is not regularly supervised by any supervisory body. This article explores the ethical issues of truthfulness experienced by lawyers negotiating merger transactions. This article presents hypothetical problems which can be seen in merger transactions and addresses related ethical issues. The hypothetical problems show untruthful behaviors by lawyers representing either the seller or the buyer, which can occur in the bidding process, while signing MOU with the preferred bidder, during the due diligence, in the negotiation of deal, in connection with the finalization and execution of the merger agreement, and closing of the deal. Generally, a lawyer’s misstatement or misrepresentation made knowingly during merger negotiation would be viewed as breach of ethical code, but she is required to advise her client to correct the defrauding situation, or choose to resign, rather than telling the truth directly to the counterparty.