Gender Issues
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Do woman speak differently than men?
Report talk vs. Rapport talk.
Ethic of care vs. ethic of justice.
Do men act differently when negotiating vs.
men than woman and vice versa?
Do men underestimate the ability of woman?
Do woman underestimate the ability of men?
Shadow Negotiations: Using Different
Skill Sets
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What is the Shadow Negotiation?
Advocacy and Collaboration.
Gender frameworks: Men have certain basic views
and skills they use. Woman have others. True?
Woman have been socialized to be mothers and care
givers and have not been schooled in the rules of
hard nosed bargaining. Is this true?
But, they can learn the rules.
What does Amy Cohen say as a response to this?
Some Ideas
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Focus on your own skills.. If you are competitive
learn to be cooperative and vice versa (even if these
come about as a result of your social background).
It is important, and it is your job, to improve your
skill sets no matter how you label them and to be
observant of other people’s negotiation style (man or
woman).
One last thing (my view): woman you will probably
never understand men and men you will probably
never understand woman and
Culture, Nationality and Race
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A few things:
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Learn every thing you can about other cultures.
Cultural issues are so complex in this global
world that using this to predict behavior is prone
to error.
Cultural variations might give you some clue or
insight into a negotiation.
You negotiation with individuals not cultural or
national averages.
Some Social Norms and Features
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Individualism vs. collectivism.
Hierarchy vs. egalitarianism.
Direct vs. indirect communication.
Be Culturally Aware
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How will you be perceived?
Be very careful when you are trying to
analyze a negotiation situation with
ANYONE who has a much different
background than you.
You must analyze how you will best
communicate your views and understand the
other side in order to best meet your clients
goals.
Ethics
Rule 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 a material 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
[which deals with lawyer’s obligation to keep
client confidences].
Know What the Ethics Rules Say
About Negotiations
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An attorney must not assist or counsel a client in conduct that is fraudulent or
criminal. Cal Rules of Prof Cond 3-700; ABA Model Rules of Prof Cond 1.2(d)
An attorney must educate the client on the ethical limits of the attorney’s
conduct. ABA Model Rules of Prof Cond 1.4 (a)(5)
An attorney must reveal client confidences only as authorized or as key
exceptions provide. Cal Rules of Prof Cond 1.6.
You are required to disclose material facts to a third party when disclosure is
necessary to avoid a criminal or fraudulent act by a client unless prohibited by
Rule 1.6. Rule 4.1 (b)
An attorney may, or even must, terminate the relationship when continued
representation could entail an ethical breach. Cal Rules of Prof Cond 3-700;
ABA Model Rules of Prof Cond 1.16.
An attorney must be candid with the court. Bus & P C 6068(d); ABA Model
Rules of Prof Cond 3.3.
An Attorney must not “engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” ABA Model Rules of Prof Cond 4.1. ABA Model Rules of
Cond 8.4 (c).
Know What the Ethics Rules Say
About Negotiations.
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Know your client’s attitude about disclosure and negotiation
tactics. Is this a bare-knuckle negotiation in which your client will
take every lawful advantage? Or, instead, is your client bargaining
for a long-term relationship in which candor is an important aspect of
success?
Know your personal attitude about disclosure and negotiation
tactics. Your attitude should be compatible with your client’s, and
both attitudes should be compatible with the ethics rules and the law
of fraud.
Know where to turn for timely legal advise and practical
guidance. Sometimes, attorneys need advise no less than clients do.
Attorneys can consult lawyers who specialize in legal ethics and
professional liability issues, call the California State Bar “Ethics
Hotline,” and research the legal issues themselves.
Five Ethical Rules
1.
While representing or assisting a client in negotiations, a lawyer must obey, and advise
clients to obey, all substantive rules of law applicable to the client’s activities business.
2.
Even if no violation of law would result, a lawyer must not make material
misrepresentations, conceal material facts or advise or assist a client in doing so.
3.
If a lawyer learns that something that the lawyer or the client previously said was in error or
was misunderstood at a time when detrimental reliance can still be avoided, the lawyer must
correct the error or misunderstanding, must cause the client to do so, or must resign.
4.
It is always proper for lawyers to discuss the moral or ethical consequences of a proposed
course of action with a client. In fact, lawyers should be encouraged to do so.
5.
If a client asks the lawyer to assist in a course of conduct that the lawyer personally believes
to be unlawful or dishonest, the attorney need not comply and may, in fact, be subjected to
discipline for doing so.
Five Rules of Fraud Prevention
1.
2.
3.
4.
5.
Do not commit fraud of assist anyone else to commit fraud.
If you know that your client intends to commit fraud or is committing fraud,
advise your client against doing so and, even if the advice appears unsuccessful,
consider whether to withdraw from the representation.
If the objection fails and your client still intends to defraud, terminate the
attorney-client relationship.
If you learn of a fraud that is not yet completed, consider what steps are permitted
or required to prevent the fraud from being completed (including, perhaps,
revelation of client confidences). Remember that California’s strict duty of
confidentiality (Cal Rules of Prof Cond 3-100) may not permit the attorney to
reveal the incipient fraud. If the attorney is governed by the ABA Model Rules,
there may be more latitude to reveal confidences.
If you learn of a fraud that has been completed, consider what steps are permitted
or required to mitigate of rectify the fraud (including, perhaps, revelation of client
confidences).
Ethical Issues
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Model Rule 1.4 requires keeping clients “reasonable
informed about the status of a matter”… the comment to
Model Rule 1.4 states that when a written offer is obtained it
should be promptly communicated to the client. Most
practitioners would go further and communicate verbal
offers as well.
What is your client asks you to do something that you are
not professionally comfortable with? (Divorce cases- you
normally voluntarily disclose assets without formal
discovery, and your client tells you not to disclose all assets
or use a very aggressive approach to negotiation.)
The Disclosure Continuum
Full, open, Disclosure of
truthful
material
disclosure information
of all
information
Disclosure
when other
side has
erroneous
assumptions
Misleading
statements
about
material
issues
Intentional
false
statements
about
material
facts or
law
Ethical Issues
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You represent a defendant and you have concluded
that based on current case law on damages your
client’s exposure is $50,000. As you walk out to a
judge supervised settlement conference, your
paralegal gives you a new case on damages
indicating that your client would have liability up to
$250,000. Do you tell the judge? The other side?
What do you do when the Judge asks you your
settlement authority. You do not have to tell the
Judge or the other side what your settlement
authority is (Model Rule 4.1). I like to deflect. “We
have not made a final determination, I can’t talk
about that… etc..my client is not ready to reveal
that yet”.
Factual Errors
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You have had a series of negotiations with an insurance
company because your client had a bad injury to his back in
an auto accident and you have stated that he has been unable
to do anything since the accident. Yesterday, your client says
he played two sets of tennis with no problems. Do you tell
them? How to you respond when they ask, “Can he
exercise?”
You Represent the husband in a divorce case. You receive a
settlement proposal from the other side that has several
errors.
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A transcription error that undervalues an asset.
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An arithmetical error that under valuse an asset.
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A valuation by purchase price of an asset when the
market value is now much higher.
Examples on Ethics
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Can you give a false or misleading interpretation about
the meaning of a case or a statute for the benefit of one’s
client? (A plausible argument, but not one’s true
opinion).
A misrepresentation about the value of a case (puffery).
A false demand… one includes a series of demands that
they care little about.
A lawyer represents three shoplifting defendants (no
conflict) and two are willing to plead guilty. The third
said that he wished to go to trial unless charges were
dropped. The defense lawyer stated that the two would
only plead guilty if the third got off (a lie about what
they said).
Client Issues
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What if your client does not want you to disclose
important information. Divorce case or employee
case (book page 269 and 270)
Ideas:
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Discuss it with the client—try to understand it.
Tell them you have to tell the truth or deflect it (most
often you can deflect it– are you ok with this?)
Signal to the other side that this is going to be a formal
negotiation or litigation (no cooperation).
Withdraw? (I prescreen and discuss this with clients at
the beginning of the assignment)
MY ADVICE ON ETHICS
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YOUR REPUTATION AS A WELL
PREPARED, DETAILED, HONEST, AND
TRUTHFUL LAWYER IS YOUR BEST
ASSET.
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DO NOT RUIN IT FOR A HIGH PAYING
(OR LOW PAYING) CLIENT OR FOR A
LUCRATIVE (BUT DISHONEST) DEAL.