A NEGOTIATING ETHICS STUDY

Marjorie L. Benson1

In a study involving the cooperation of provincial law societies, a lawfoundation, CLE organization, CBA Branch sections, university units,senior advisory counsel, and practitioners, 35 civil lawyers in Regina,Saskatoon and Calgary were interviewed in winter 2005-2006 concerningnegotiating ethics. Study results are being compiled, but early themessuggest that the keys to ethical and best practice negotiation lie in overalllegal competence and integrity — handling client’s objectives, law andfacts, legal and financial risks, procedural and substantiverecommendations, client instructions, moving to settlement or trialaccording to the client’s best interests — with good communication skills,trustworthiness, honesty, and civility.

Dans le cadre d’une étude réalisée au cours de l’hiver 2005-2006 àlaquelle ont collaboré plusieurs barreaux provinciaux, une fondation dudroit, une organisation consacrée à la formation juridique permanente(FJP), plusieurs sections provinciales de l’Association du Barreaucanadien (ABC), des unités universitaires, des avocats consultantschevronnés et plusieurs avocats en exercice, 35 avocats pratiquant en droitprivé de Regina, Saskatoon et Calgary ont répondu à des questions portantsur les négociations en matière d’éthique. La compilation des résultats de cette étude n’est pas encore terminée mais les premiers résultatsrévèlent que les éléments essentiels en matière d’éthique et de pratiquesexemplaires dans le momaine des négociations reposent essentiellementsur la compétence juridique et l’intégrité des juristes. Il faut notammenttenir compte des objectifs du client, des faits et du droit, des enjeuxjuridiques et financiers, des recommandations substantives etprocédurales, des instructions du client menant au règlement de l’affaireou au procès conformément aux meilleurs intérêts du client, tout en faisantpreuve d’une bonne communication, de fiabilité, d’honnêteté et de civisme.

Copyright © 2006 by Marjorie L. Benson.1 Associate Professor, College of Law, University of Saskatchewan. With sincere

thanks to the 35 members of the Alberta and Saskatchewan Bars whose insights and adviceare the substance of the study; to the Advisory Committee Brent Cotter, Tom Molloy, andSilas Halyk; to students-at-law Jennifer Robertson and Clayton Barry; to the Law Societiesof Alberta and Saskatchewan, Law Foundation of Saskatchewan, Saskatchewan ContinuingLegal Education Society, Canadian Bar Association Saskatchewan Branch Civil LitigationSections, University of Saskatchewan Behavioural Ethics Research Board, and to membersof the Bar who advised informally concerning the study.

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Introduction

The following offers preliminary information concerning a “NegotiatingEthics” study consisting of interviews with 35 private practitioners in civillaw in Alberta and Saskatchewan. The study grew out of a desire to offerlaw students more literature on the ethics of negotiation in the context ofCanadian professional codes and practices.2 The study was developed atthe College of Law, University of Saskatchewan, and supported by the

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2 For example, Alberta’s Code of Professional Conduct contains a separate chapter,Chapter 11 “The Lawyer as Negotiator,” online: The Law Society of Alberta<http://www.lawsocietyalberta.com/resources/codeProfConduct.cfm>. Saskatchewan’sCode of Professional Conduct, online: <http://www.lawsociety.sk.ca/newlook/Publications/Code2001/CodeCompleteNov03.pdf> follows “in large part” the CanadianBar Association Code of Professional Conduct, which directs negotiation implicitlythrough provisions of the entire Code, online: <http://www.cba.org/CBA/activities/code>.Well known Canadian texts in Alternative Dispute Resolution, including Hon. George W.Adams, Mediating Justice: Legal Dispute Negotiations (Toronto: CCH Canadian, 2003),Genevieve A. Chornenki & Christine E. Hart, Bypass Court, 3d ed. (Markham, ON:LexisNexisButterworths, 2005), Robert M. Nelson, Nelson on ADR (Scarborough, Ont.:Carswell, 2003), Julie Macfarlane, ed., Dispute Resolution: Readings and Case Studies, 2ded. (Toronto: Emond Montgomery, 2003), and Andrew Pirie, Alternative DisputeResolution: Skills, Science and the Law (Toronto: Irwin Law, 2000), contain chapters orreferences to negotiation practices. Most of the academic literature referenced in the textsare classic American sources, for example, Roger Fisher, William Ury & Bruce Patton,Getting to Yes: Negotiating Agreement Without Giving In, 2d ed. (New York: PenguinBooks, 1991), D.A. Lax & J.K. Sebenius, The Manager as Negotiator: Bargaining forCooperative and Competitive Gain (New York: Free Press, 1986); Robert H. Mnookin,Scott R. Peppet & Andrew S. Tulumello, Beyond Winning: Negotiating to Create Values inDeals and Disputes (Cambridge, Mass.: Harvard University Press, 2000); Dean G. Pruitt& Peter J. Carnevale, Negotiation in Social Conflict (Pacific Grove, Cal.: Brooks/Cole,1993); and Howard Raiffa, The Art and Science of Negotiation (Cambridge, Mass.: HarvardUniversity Press, 1982). Professor John Manwaring, U. of Ottawa, who authored the majorchapter on Negotiation in Macfarlane, Dispute Resolution: Readings and Case Studies(ibid.), includes two sections specifically devoted to ethical issues: “Ethical Frameworksfor Negotiation,” at 258, and “Lawyers, Ethics, and Negotiation” at 266. ProfessorManwaring includes at 266 selections from the Law Society of Upper Canada Rules ofProfessional Conduct as ethical rules relevant to negotiation, including the rule that alawyer “shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegalconduct,” “shall conduct himself or herself in such a way as to maintain the integrity of theprofession,” “shall be courteous, civil, and act in good faith with all persons,” and “shallavoid sharp practice and shall not take advantage of or act without fair warning upon slips,irregularities, or mistakes on the part of other lawyers not going to the merits or involvingthe sacrifice of a client’s rights.” The academic literature referenced in these sectionsincludes: C. Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure

A Negotiating Ethics Study

Law Foundation of Saskatchewan. The Law Society of Saskatchewanappointed an Advisory Committee consisting of Brent Cotter Q.C., TomMolloy O.C.Q.C., and Silas Halyk Q.C. The Law Society of Alberta, theSaskatchewan Continuing Legal Education Society, and the Canadian BarAssociation Saskatchewan Branch Civil Litigation Sections acted asneutral third-party recommenders of senior practitioners to be invited tocontribute to the study.

The study was limited to members of the private bar in Alberta andSaskatchewan who practise civil law.3 A Phase II is currently beingplanned to include government and corporate counsel. Study protocolswere approved by the University of Saskatchewan Behavioural ResearchEthics Board. Interviews proceeded on the basis of individual consent andanonymity, and were conducted between December 2005 and March 2006in Calgary, Saskatoon, and Regina. Interviews were recorded, transcribed,and returned to participants for revision and approval.

At the time of writing, results are being compiled. In recognition,however, of the Canadian Bar Review’s special focus on Ethics throughthe publication of this issue, interviewees have agreed to a preliminaryrelease on a generic basis of some of the themes emerging in the study.Results contain a range of opinion, detail, and examples on negotiationethics and practices that will be available in the final report to anyoneinterested.

No clear line emerged between ethical and best practice issues.Practitioners agreed at a minimum on the situations requiring negotiatingdecisions in the day-to-day handling of a case, and some ethics and bestpractice considerations, as outlined below.

A. Situations Requiring Negotiating Decisions Throughout a Case

Lawyers negotiate throughout a case with many parties, including theclient, other counsel, and third parties. As a client or file arrives in alawyer’s office, agreements are needed concerning fees and conditions. If

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of Problem Solving” (1984) 31 UCLA L. Rev. 754, G.B. Wetlaufer, “The Ethics of Lyingin Negotiations” (1990) 75 Iowa L. Rev. 1219, and R.J. Lewicki et al., Negotiation, 2d ed.(Chicago: Irwin Law, 1994).

3 The premises and dispute resolution processes are different, and more Canadian-based literature exists concerning practices and ethics of negotiating, in criminal law andfamily “Collaborative Law” contexts. See for example Michel Proulx & David Layton,Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) and Janis M. Pritchard,David J. Carter & R. Brad Hunter, Collaborative Law Training Materials: Solving Conflictwith a Collaborative Process (Medicine Hat, Alta.: Palliser Conflict Resolution, 2002).

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the lawyer and client agree to proceed, the lawyer seeks to understand theclient’s objectives in the case. Clients have a range of experience inassessing legal and financial risk, from considerable experience inassessing risk and establishing objectives, to almost total dependence onthe lawyer for advice with respect to legal and financial risks and realisticobjectives. The lawyer, either initially or as the case proceeds, seeks adeeper understanding of the client’s relevant interests, including ongoingrelationships and third party implications. If the lawyer and client have along-term relationship, the lawyer will already have an understanding ofthe client’s underlying interests. The lawyer will discuss with the clientdispute resolution options as well as specific requirements in thejurisdiction.

If the lawyer does not have sufficient information to assess the legaland financial risk in the file, the lawyer determines what additionalinformation is needed and how it may be acquired. More information maybe needed from the client, from opposing counsel, or in relation to the law.The most effective means of acquiring information is assessed on the basisof many factors, including the client’s circumstances, the opposing counseland client, the nature of critical information and costs of gathering it, anddispute resolution processes in the jurisdiction. It may be necessary toacquire experts or to move to examinations for discovery to adequatelyassess risk.

With sufficient information, the lawyer arrives at an assessment of thelegal and financial risk, and formulates detailed projections of the costs andbenefits of different approaches to resolving the dispute, includingsettlement discussions or litigation. The lawyer makes a recommendationto the client as to a range of realistic outcomes, and the choice of disputeresolution processes that in the lawyer’s judgment will resolve the case inthe most cost-effective way. If necessary, the lawyer works with the clientto develop understandings of the law, the costs and benefits of differentapproaches to dispute resolution, and realistic expectations as to outcomes.The lawyer seeks to arrive at consensus with the client as to how toproceed.

As the case progresses and new information emerges, the lawyercontinues to assess risk, to recommend next steps and seek consensus withthe client concerning instructions, and to work with the client in legal andprocedural understandings.

B. Ethics and Best Practice Considerations

Competent work with respect to law and facts early in a case grounds

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A Negotiating Ethics Study

effectiveness in all that follows, including negotiations. Whetherproceeding to settlement discussions or to litigation, the lawyer preparesthe case well, discloses all information required by law to be disclosed, andprepares written materials in a clear, concise and well-organized way. Thelawyer is competent to conduct a trial if needed. The lawyer knows thedifficult questions in the case and is prepared to respond. The lawyer has arealistic assessment of the range of outcomes, and is prepared to entersettlement discussions as appropriate. The lawyer’s goal is to assist theclient to achieve realistic objectives in a cost-efficient way. The lawyer isaware of the impact of different fee structures on client costs, e.g.contingency vs. hourly fees, and ensures that client interests are paramountin choosing dispute resolution processes.

Settlement discussions are conducted within a justifiable range, andoffers, when made, are ones the lawyer is prepared to support to trial ifneeded. The lawyer knows the “must haves,” “can’t haves,” and feasiblepotential concessions. Settlement offers are communicated to clients.Concessions are made on a principled basis according to reciprocity or theemergence of new information. Settlement options are kept open “up to thecourtroom steps.” A satisfactory settlement gives all parties a way topreserve dignity, and the more an agreement satisfies both sides’ interests,the more durable it will be.

In dealings with clients, counsel, or third parties, lying,misrepresentation, and deception are outright unethical. A lawyer declinesto act if a client presses the lawyer to do something unethical. A lawyertreats other counsel with courtesy, is not rude or uncivil, and does notundermine the lawyer as a person. Clients and counsel have a longmemory, and any untrustworthy or uncivil behaviour will be rememberedby other counsel and will lead to mistrust. Lawyers who overstate orbluster will find their statements discounted. A lawyer does not takeadvantage of a slip in procedure by the other side if it does not go to themerits and will not hurt the client’s interests. The more trust there isbetween opposing counsel, the more open and frank settlement discussionscan be, which increases the cost-efficiency for the client. The lawyer whois competent, fair, and firm gains a reputation for preparedness, honesty,trustworthiness, civility, and reasoned and principled interactions. A goodreputation is a lawyer’s (and a client’s) most valuable asset.

In negotiation, there is no independent third party in the room tocontrol procedural or substantive justice. The lawyer makes thosedecisions, with the ethical weight that carries. Lawyers should never letthemselves be pressed into doing anything they will not have a clearconscience about afterward, or would not want their client, the court, other

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counsel, the public or their family to know about. If in doubt, lawyersshould ask a respected colleague. Young lawyers can best learn ethical andeffective practices in the many nuances of negotiation by working withwise and skilled senior practitioners.

C. Summary Themes

Overriding themes emerging in the study concerning negotiating ethicsmight be summarized as competence and integrity. Legal competenceincludes knowing the law, acquiring the facts, solid preparation of the caseand the client, realistic objectives and cost-effective processes, reasonedsettlement discussions, and the skill to conduct any dispute resolutionprocess effectively. Integrity is long term trustworthiness, honesty, honour,and civility, and the reputation and respect that flow from years ofinteraction on these bases with clients, counsel, the Court, staff, thirdparties and the community.

As noted, the above provides but a cursory glance at patterns emergingin the interviews, lacking the richness of detail, examples and nuancedadvice on negotiation ethics and best practices offered by experiencedpractitioners. These will be available in the final report as soon as it iscomplete.

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