Ethics in Negotiation
Course Description:
Negotiation is a fundamental skill for lawyers, yet it presents unique ethical dilemmas. Attorneys must balance their duty of zealous advocacy with the obligation to be truthful while avoiding misrepresentation. This CLE course explores ethical considerations in legal negotiations, including the line between permissible strategy and unethical deception.
Participants will examine the Rules of Professional Conduct, the Restatement of the Law Governing Lawyers, and Standards of Conduct for Mediators to understand how ethics shape negotiation tactics. Through case law and practical scenarios, this course will help attorneys navigate the fine line between persuasive negotiation and ethical violations.
Learning Objectives:
- Understand the ethical spectrum of negotiation, from permissible persuasion to unethical deception.
- Learn what constitutes a material fact and when disclosure is required under Rule 4.1.
- Explore the consequences of ethical missteps, including legal and reputational risks.
- Analyze ethical standards specific to mediators and legal negotiations.
Agenda
I. Introduction to Ethics in Negotiation
- The tension between honesty and strategic misrepresentation.
- Perspectives on negotiation ethics: “It’s a game” vs. “Do the right thing.”
- Overview of key ethical frameworks: ABA Model Rules, Restatement of Law Governing Lawyers.
II. Defining Truthfulness and Materiality
- What is a material fact? Legal definitions and case law (e.g., Carnahan v. American Family Mutual).
- Distinction between statements of fact vs. opinion, estimates, and puffery.
- Rule 4.1: Lawyer’s duty to avoid false statements and omissions.
- Partial disclosure and the “slippery slope” problem.
III. Ethical Boundaries in Negotiation
- Recognizing misleading tactics and their ethical implications.
- Factors that influence the perception of truthfulness: past relationships, sophistication of parties, plausibility of statements.
- Standard VI of Mediator Conduct: Honesty and candor in mediation settings.
- Case studies: When does negotiation cross the ethical line?
IV. Consequences of Ethical Violations
- Legal repercussions of misrepresentation.
- The “Reputation Effect”: How unethical negotiation impacts future dealings.
- Increased transaction costs and lack of trust in legal settings.
- How ethical missteps in negotiation can lead to disciplinary action.
V. Best Practices for Ethical Negotiation
- Strategies to maintain ethical compliance while advocating for clients.
- The role of honesty, candor, and good faith negotiations.
- Practical guidelines for navigating ethical gray areas.
Originally recorded October 29, 2024.
