Attorneys and Negotiation Ethics: A Material Misunderstanding?


by Art Hinshaw

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.

October 2013

Art Hinshaw

Attorney negotiation ethics is a timeless topic as evidenced in a recent contribution from Peter Reilly (Texas A&M), Andrea, and me entitled, Attorneys and Negotiation Ethics: A Material Misunderstanding? 29 Negotiation J. 265 (2013), (on SSRN and available for download here). The paper discusses the common themes across our various empirical work on the subject, and is the result of a presentation we made at the ABA DR Section Conference a couple of years ago. Thanks to my coauthors for an enjoyable writing process, and I love your respective work with the Lempert survey instrument from the late 1980s. If you’re interested in attorney negotiation ethics and don’t know about the Lempert survey, you’ll want to read the paper. Here’s the paper’s abstract.

Our research suggests that a true norm of ethical negotiation behavior exists within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of our research respondents — at times approaching one-third of them — engaged in unethical and even fraudulent behavior. Additionally, the survey respondents were not saddled with the pressures that practicing attorneys typically confront (pressures likely to make people behave less, rather than more, ethically). In an attempt to understand the reasons for such a high frequency of unethical negotiation, we have identified three major contributing factors: too many lawyers have only a superficial understanding of rules that are more complicated than they appear; lawyers frequently take their “zealous advocate” role too far, thereby placing client loyalty above other important values such as respect for truth and justice; and the practice of law and the people who are drawn to it are highly competitive. To address these factors, we suggest approaching the problem from several different angles. In the classroom, we suggest a focus on the relevant legal standards, including a focus on the often misunderstood law of fraudulent misrepresentations. Because many students fail to appreciate the differences between “ethical” behavior, the floor of socially acceptable conduct, and the expectations that others have for how they will be treated, we also suggest that lawyer training programs focus on the important role that personal relationships and one’s reputation play in the legal profession, and how falling short in these areas can decrease one’s negotiation effectiveness. For the profession itself, we also suggest clarifying the attorney rules of conduct and provide a number of tactics and strategies to defend against lying and deception during negotiation. Finally, we recognize there are certain psychological factors at play that can cause people to engage in behavior inconsistent with their personal sense of ethics. We believe the only way to avoid these lapses is to integrate conscious and reflective practices that can bring ethical concerns to the forefront of lawyers’ decision-making and thought processes.



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Biography




Art Hinshaw’s research and teaching interests lie in the field of alternative dispute resolution (ADR), primarily mediation and negotiation. His research bridges ADR theory and practice, and his teaching responsibilities include the Lodestar Mediation Clinic and Negotiation among other ADR courses.

Professor Hinshaw is active in the ADR community having served on several academic and professional committees at the state and national levels. Currently, he serves as a member of the ABA's Standing Committee on Mediator Ethical Guidance. Additionally, he is a Senior Fellow at the Center for the Study of Dispute Resolution at the University of Missouri School of Law and is a contributor to Indisputably, the ADR Prof Blog.

Professor Hinshaw joined the College of Law faculty after teaching at the University of Missouri School of Law and at the Washington University School of Law in St. Louis. Before his academic career, he practiced law in Kansas City, Missouri.



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Website: apps.law.asu.edu/Apps/Faculty/Faculty.aspx?individual_id=5328

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