Lawyers' Ethical Obligations, Innovative Models of Legal Service and a Time of Regulatory Upheaval: Settlement Counsel as an Instructive Model

Canadian Bar Review, 96(2), Forthcoming

Posted: 24 Mar 2018 Last revised: 15 May 2018

See all articles by Michaela Keet

Michaela Keet

University of Saskatchewan College of Law

Brent Cotter

University of Saskatchewan - College of Law

Date Written: 2017

Abstract

Current models of professional regulation still embody traditional norms around the lawyer’s role. This article explores the constraints of reactive, rule-based ethical frameworks, using the example of Settlement Counsel, an innovative negotiation structure to advance settlement in commercial litigation. Settlement counsel work alongside litigation counsel, on the same side of the litigation file, but with carefully bifurcated roles. Drawing on interview data, the authors discuss the tensions encountered by settlement counsel as they fit their work into traditional obligations around competence, loyalty, confidentiality, candour and lawyer-client cross-communication. The authors present pathways chosen by settlement counsel to ensure compliance. In today’s environment, however – with its emphasis on “accessible” outcomes and innovation – regulatory frameworks need to be more flexible and responsive. The emerging model of compliance regulation is explored, and is offered as a framework with capacity to evolve alongside innovations in the delivery of legal services.

Keywords: Rule-Based Ethical Frameworks, Innovative Negotiation Structure, Emerging Model of Compliance Regulation

Suggested Citation

Keet, Michaela and Cotter, Brent, Lawyers' Ethical Obligations, Innovative Models of Legal Service and a Time of Regulatory Upheaval: Settlement Counsel as an Instructive Model (2017). Canadian Bar Review, 96(2), Forthcoming. Available at SSRN: https://ssrn.com/abstract=3148038

Michaela Keet (Contact Author)

University of Saskatchewan College of Law ( email )

Saskatoon, SK
Canada

Brent Cotter

University of Saskatchewan - College of Law

Saskatoon, Saskatchewan
Canada

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