Introduction
Arranging deals of various kinds is a central part of most lawyers’ work, both in the context of transactions (non-contentious proceedings) or disputes (contentious proceedings).
Different processes are used, including negotiating and bargaining. Negotiation, in ordinary speech, is a process of seeking agreement. Bargaining generally describes a narrower process of seeking agreement face to face.2 In civil actions, negotiation, rather than adjudication, determines the outcome in the majority of cases. Unlike advocacy, bargaining usually occurs in private, unmonitored by the court. Clients are often unsure of what happened when their lawyers met the other side. In no other area of legal representation is the conduct of lawyers as important to clients or the ethics of lawyers more tested and difficult to verify.When it forms part of the litigation process, bargaining may be subject to the litigator’s duty to the court. Lawyers must then act with independence in the interests of justice and to comply with the rules of conduct of their professional body.3 Otherwise, despite the practical importance of negotiation to lawyers, it is relatively unregulated. No rules of conduct expressly apply. Prospective values, fair treatment of third parties,
1 RF Thurman, ‘Chipping Away at Lawyer Veracity: The ABA’s Turn Toward Situation Ethics in Negotiations’ (1990) Journal of Dispute Resolution 103, at 115.
2 DA Lax and JK Sebenius, The Manager as Negotiator: Bargaining for Co-operation and Competitive Gain (New York, Free Press, 1986).
3 Courts and Legal Services Act 1990, s 28(2A) (rights to conduct litigation), as amended by the Access to Justice Act 1999, s 42; and see ch 17: ‘Litigation’.
honesty, frankness and integrity, are relevant, but it is not clear how. Whether they prevail depends on the culture of negotiation and the models of bargaining in use. Whereas other important activities, litigation and advocacy for example, are subject to sophisticated rules of procedure, the ‘unwritten rules’ of negotiation are intuitive and obtuse. In bargaining there is a distinct possibility that ethical norms are ‘violated with... confidence that there will be no discovery and no punishment’.4 Lawyers potentially descend into ‘the swamp’ of practice and progress the messy business of solving client conflicts in the real world.5 Yet, with attempts to curb the adversarial ethic in litigation generally, there is an argument that negotiation and bargaining should be governed by norms of frankness and fairness.
II.