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ethics negotiation (2) [Read-Only]ACC Houston
Texas Lawyer’s Creed
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International Bar Association Principles
Council of Bars and Law Societies of Europe (CCBE) Code of
Conduct
Texas-Mexico Bar Association International Lawyer’s Creed
It’s not my fault.
During settlement negotiations, you offer to settle by paying
$650,000.
The mediator returns with a mediation agreement listing
$605,000.
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Do you correct the amount?
ABA “practical, user-friendly guide”
During settlement negotiations and in concluding a settlement, a
lawyer is the client’s representative and fiduciary, and should act
in the client’s
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fiduciary, and should act in the client’s best interest and in
furtherance of the client’s lawful goals.
A lawyer’s conduct in negotiating a settlement should be
characterized by honor and fair-dealing.
ABA Section of Litigation – Ethical Guidelines for Settlement
Negotiations
A lawyer shall treat client interests as paramount, subject always
to there being no conflict with the lawyer’s duties to the court
and the interests of justice, to observe the law, and to maintain
ethical standards.
A lawyer shall at all times maintain the highest standards of
honesty, integrity and fairness towards the lawyer’s clients, the
court,
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towards the lawyer’s clients, the court, colleagues and all those
with whom the lawyer comes into professional contact.
It is also true that there are different standards expected towards
the client, the court or a professional colleague since the lawyer
has different responsibilities towards each category.
International Bar Association Principles on Conduct for the Legal
Profession
734 lawyers …
Ms. suggests their lawyers meet
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Mr. confides in his lawyer that his tests were
false-positives.
Mr. requests his lawyer keep quiet.
Art Hinshaw and Jess K. Alberts, Attorney Negotiation Ethics: An
Empirical Assessment
62% would not agree to the client’s demand
Personal integrity
No affirmative duty to inform opposing party
A lawyer shall not assist or counsel a client to engage in conduct
that the lawyer knows is criminal or fraudulent.
When a lawyer has confidential information clearly establishing
that a client is likely to commit a criminal or
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client is likely to commit a criminal or fraudulent act that is
likely to result in substantial injury to the financial interests
or property of another, the lawyer shall promptly make reasonable
efforts under the circumstances to dissuade the client from
committing the crime or fraud.
Texas Disciplinary Rules of Professional Conduct
ABA 4.1 Truthfulness in Statements to Others
In the course of representing a client, a lawyer shall not
knowingly:
(a) Make a false statement of material fact or law to a third
person; or
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fact or law to a third person; or
(b) Fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is prohibited by Rule 1.6.
Materiality … “depends” False statement of law
False statement of material fact
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Know its false
Intend to mislead
Identification of the principal
If a client directs the lawyer to act, in the context of settlement
negotiations or in concluding a settlement, in a manner the lawyer
reasonably believes is contrary to the attorney’s ethical
obligations or applicable law, the lawyer should counsel the client
to pursue a different and lawful course of conduct. If a mutually
agreeable and proper course of action does not arise from the
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proper course of action does not arise from the consultation, the
lawyer should determine whether withdrawal from representing the
client is mandatory or discretionary, and should consider whether
the circumstances activate ethical obligations in addition to
withdrawal, such as disclosure obligations to a tribunal or to
higher decisionmaking authorities in an organization.
ABA Comment on Rule 4.1
You snooze you lose...
You are reducing the terms of a contract to a written agreement.
The buyer’s attorney sends back the final agreement with the
buyer’s signature.
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agreement with the buyer’s signature.
You notice that a hotly contested provision reverted by mistake
back to previous contract version – to your client’s immense
benefit.
Do you call opposing counsel?
CCBE Core Principle: the dignity and honour of the legal
profession, and the integrity and good repute of the individual
lawyer.
TMBA: A lawyer owes to opposing counsel, in the conduct of legal
transactions … courtesy, candor, cooperation and
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courtesy, candor, cooperation and scrupulous observance of all
agreements and mutual understandings.
TDRPC: As negotiator, a lawyers seeks a result advantageous to the
client but consistent with requirements of honest dealing with
others.
I have a secret. Day 18 of a jury trial.
Counsel negotiates over the lunch hour and plaintiff’s demand is
now down to $700,000.
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$700,000.
Client remained in the courtroom and overheard the jury agree to a
$4,000,000 award.
Client says accept the demand right now and keep your mouth
shut.
Do you accept in silence?
CCBE: Loyalty to the client is of the essence of the lawyer’s
role.
TDRP: A lawyer shall not knowingly reveal confidential information
of a client to a person that the client has instructed is not to
receive the information or anyone else…
ABA: A lawyer shall not reveal information
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ABA: A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed
consent.
IBA: The loyal defence of a client’s case may never cause advocates
to be other than perfectly candid, subject to any right or
privilege to the contrary which clients choose them to exercise, or
knowingly to go against the law.
If you don’t, I will.
Your client has given you pictures of the opposing party’s
CEO.
They are embarrassing.
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Client says – “Tell the lawyer I’ll post them on Facebook unless
they agree to renew our contract.”
Do you issue the Facebook threat?
The pictures are / are not relevant.
In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay,
or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.
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violate the legal rights of such a person.
Comment: Although in most cases a lawyer’s responsibility to the
interest of his client is paramount to the interest of other
persons, a lawyer should avoid the infliction of needless
harm.
Texas Disciplinary Rules of Professional Conduct
If a lawyer finds a client’s proposed strategy or goal regarding
settlement to be repugnant, but not contrary to applicable law or
rules, or if the lawyer has a fundamental disagreement with the
client’s strategy or goal, the lawyer may
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client’s strategy or goal, the lawyer may continue the
representation on the condition that the lawyer will not be
required to perform acts in furtherance of the repugnant strategy
or goal, or may withdraw from the representation.
ABA Comment on Rule 4.1
Ethics Opinion 214
Wife sues husband for divorce. Husband wants his attorney to notify
the wife's attorney of an affirmative
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the wife's attorney of an affirmative defense (infidelity), to be
used as "trading matter" to secure a favorable property
settlement.
Can you use the threat of an affirmative defense?
Unanimous opinion
In the absence of other facts indicating lack of candor to the
court, the attorney may use this
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court, the attorney may use this information in an attempt to
favorably influence negotiations for settlement.
Texas Lawyer’s Creed
Therefore, “My word is my bond.”
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Charlie Meacham Samantha Trahan Gardere Wynne Sewell
Bass Wallace, Jr. Tetra Technologies, Inc. 24955 Interstate 45
North The Woodlands, TX 77380 (281) 367-1983
[email protected]
Gardere Wynne Sewell 1000 Louisiana Suite 3400 Houston, TX 77002
(713) 276-5500
[email protected] [email protected]
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