Attorneys and Negotiation Ethics: A Material Misunderstanding?

Negotiation Journal, Vol. 29, No. 3, 2013

Marquette Law School Legal Studies Paper No. 13-20

24 Pages Posted: 8 Oct 2013

See all articles by Art Hinshaw

Art Hinshaw

Arizona State University

Peter Reilly

Texas A&M University School of Law

Andrea Kupfer Schneider

Marquette University - Law School

Date Written: October 7, 2013

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.

Keywords: negotiation, ethics, lying, deception, professionalism, legal education

Suggested Citation

Hinshaw, Art and Reilly, Peter and Schneider, Andrea Kupfer, Attorneys and Negotiation Ethics: A Material Misunderstanding? (October 7, 2013). Negotiation Journal, Vol. 29, No. 3, 2013; Marquette Law School Legal Studies Paper No. 13-20. Available at SSRN: https://ssrn.com/abstract=2337060

Art Hinshaw

Arizona State University ( email )

111 E. Taylor St.
MC 9520
Phoenix, AZ 85004-4467
United States

Peter Reilly

Texas A&M University School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76102

Andrea Kupfer Schneider (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States

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