Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics

Art Hinshaw
Arizona State University

Jess K. Alberts
Arizona State University

June 10, 2009

CELS 2009 4th Annual Conference on Empirical Legal Studies Paper

Abstract:

The code of ethical conduct for lawyers — the American Bar Association’s Model Rules of Professional Conduct (the “Model Rules”) — legitimizes a certain amount of dissembling and misdirection in the negotiation realm, only prohibiting legal negotiators from making fraudulent misrepresentations about material matters. To determine if attorneys are meeting this low standard, the authors surveyed practicing lawyers and asked them if they would agree to engage in a fraudulent pre-litigation settlement scheme if a client requested them to do so. Nearly one-third of the respondents indicated they would agree to the client’s overtures, and only half indicated that they would refuse the client’s overtures, thereby following the Model Rules. Follow-up questioning suggested several reasons for these results: there appears to be substantial misunderstanding as to what constitutes a fraudulent misrepresentation, there seems to be considerable confusion surrounding the rule’s operative term “material fact,” and it appears that some of the attorneys believe that other legal rules, including other portions of the Model Rules, either gave them permission or required them to engage in the fraudulent negotiation scheme. To rectify these apparent misunderstandings among practicing lawyers, the article offers three interdependent means for improving lawyer negotiation ethics – rule clarification, education, and increased rule enforcement.

Doing the Right Thing- An Empirical Study of Attorney Negotiation Ethics

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