Bar's Failure to Require Truthful Bargaining by Lawyers
Gary T. Lowenthal
affiliation not provided to SSRN
Geography Journal of Legal Ethics, Vol. 2, p. 411, 1988
I argue in this article that in the context of negotiation ethics, the criticism that the Model Rules merely regurgitate existing legal duties is too weak; the Rules permit or require lawyers to ignore legal duties in several circumstances when those duties conflict with client interests or with lawyers' own interests. Part I, which analyzes the bar's treatment of the most common forms of duplicity in negotiation, offers several examples of why the Model Rules are not a tepid code that merely parrots existing law. Part II analyzes the theoretical foundations for the ABA's policy against regulating lawyers' dishonest bargaining practices. Commentators have offered three rationales to justify the bar's laissez-faire approach. One argument is that a certain level of misrepresentation in bargaining must be tolerated in an adversarial system of client representation.'" A second rationale is that deception is a lamentable but necessary part of negotiation's idiosyncratic process. Third, some have argued that tough rules against dishonest bargaining should not be adopted because they would be widely violated. This article rejects such arguments and suggests that rigorous standards are preferable to vague rules that tacitly encourage dishonesty, so long as the standards are enforced and are accompanied by meaningful educational programs. Alternatively, the bar should consider the option of having no rules at all, leaving to legislatures and courts the exclusive responsibility for regulating lawyers' bargaining.
Number of Pages in PDF File: 37
Keywords: Negotiation, bargaining, ethics
Date posted: July 31, 2009
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