Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyer's Responsibilities
South Texas Law Review, Vol. 38, May, 1997
Posted: 13 Nov 1998
Date Written: May 1997
This article reviews a variety of ethical dilemmas and issues presented by the new forms of practice in "appropriate" dispute resolution and argues that the conventional lawyers' rules, the Model Rules of Professional Conduct, cannot answer questions about such quandaries because of its different organizing paradigm of adversariness in the lawyer's role. The article reviews, briefly, the intellectual history of ADR and professional ethics regulation to demonstrate that ADR, as a variant on legal process conceptions of institutional or role settlement, requires its own set of rules, based on different organizing purposes and functions of the lawyer's role. The article explores new and current case law on such issues as conflicts of interest, third party neutral liability and immunity and discusses possible topics of ethical regulation, including fees, confidentiality, transdisciplinary practice, accountability for ADR outcomes and explores the differences between "macro" justice issues and "micro" behavioral choices.
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