Future Regulatory Possibilities
A. Orientation
It appears that principled negotiation is a method of bargaining most consistent with professional commitments to virtues such as honesty, integrity and fairness.
It is tempting to suggest, therefore, that conduct rules should support principled negotiation116 ibid, ch 1: Client Care Outcome 1.5.
117 BSB, Handbook, pt 2: The Code of Conduct, ‘The Core Duties’, Core Duty 2.
118 ibid, Core Duty 3.
119 BSB, Handbook, pt 2: The Code of Conduct, ‘The Conduct Rules’, rC15.1.
120 ibid, rC8.
121 ibid, rC9.1.
more explicitly. Such a step should not, therefore, be taken lightly. There are various policy issues to consider. First, for example, conducted properly, principled negotiation should produce outcomes very similar to those produced by mediation. The distinction between negotiation and mediation is one that both lawyers and their clients may wish to retain. Secondly, imposing a duty to be principled may give an advantage to those who are unprincipled. Thirdly, there may also be an increase in transaction costs, such as insurance, if more prescriptive regulation gave rise to legal actions.[3007]
B. Education and Training
Both the solicitors’ and barristers’ vocational courses teach negotiation, but courses tend to be light on bargaining theory. They tend to conflate problem-solving methods of bargaining and more adversarial styles. Greater attention to negotiation in education and training would be a necessary part of changing the culture of bargaining for lawyers.
C. Conduct Rules
The current situation, where there are no definitive rules of bargaining for lawyers, is inimical to an environment of trust in the legal services market. It is arguable that there should be no exceptions for ‘bluffing’ in negotiation.
Exceptions to truthfulness norms often encourage a culture of deceit.[3008] The argument is that making an exception for negotiation would be likely to lead to unintended violations, compromise the position of lawyers as officers of the court and lead to lower levels of trust and co-operation.There are various possibilities for improving the transparency of regulation of negotiation. This would involve defining what constitutes ethical behaviour in this sphere of activity given (i) different models of bargaining that may be appropriate and (ii) the large range of situations potentially subject to bargaining.
An example of how it might be possible to distinguish the standards expected in negotiation from those in other areas is provided by the ABA’s model code. This distinguishes between the lawyer’s role in advising and as advocate, as follows:
As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.[3009]
A rule on negotiation could marry the obligations of honesty and candour in relation to material facts with:
----- an obligation to explore with clients their perceptions of their interests; and
----- to seek a settlement where that is in the client’s best interests; and
---- to seek a settlement which satisfies the client’s interests as far as possible and which is fair and reasonable to both sides.
Such a move would be consistent with continuing attempts to make litigation more transparent and less vulnerable to manipulation. Such proposals seem destined to fall on sceptical ears. Judged by the codes of conduct, the legal profession appears to pride itself on a pragmatic approach to conducting business in an adversarial setting.
VII.