Jonathan Herring “Legal Ethics” Oxford University Press (2017) chapter 10 on Alternative Dispute Resolution
Andrew Boon “The Ethics and Conduct of Lawyers in England and Wales” (Hart 2014) chapter 18 Negotiation
Andrew Boon “Lawyers’ Ethics and Professional Responsibility” (Hart 2015) chapter 11 Settlement
Rebecca Hollander-Blumoff “Just Negotiation”  88 Washington University Law Review 381
Carrie Menkel-Meadow “Toward Another View of Legal Negotiation: The Structure of Problem-Solving” (1984) 31 UCLA Law Review 754
Issues in negotiation ethics: Choices and Challenges
When you write your negotiation critique, we encourage you to focus on specific choices and challenges you faced in negotiating for your client in the scenario.
Important choices for negotiators can include:-
1. Court or negotiation: Is it more ethical to resolve disputes through negotiation?
2. Competitive or problem-solving: Which negotiation style should you use?
3. Client loyalty or fairness: how far should you go?
Four Models of Lawyers’ Ethics
Your response to all of these ethical questions might depend on your preferred approach to lawyers’ ethics. Here is a reminder of the four main schools of thought. We will discuss the implications of each model of ethics for negotiation, considering whether each model would affect your willingness to negotiate and how you would conduct negotiation.
1. Zealous advocates believe that the highest moral value for lawyers is client autonomy (respecting the client’s goals, not judging the client). They believe in doing everything they can – within the law and the professional code of conduct – to achieve the goals of their clients.
2. Responsible lawyers believe that the highest moral value for lawyers is justice. They also believe in doing what they can for their client, within the law and the professional code. However, they would not undermine justice. Different responsible lawyers might define justice in different ways – they might see it as involving the ‘spirit of the law’, the purpose of the law or not using bad-faith interpretations of the law.
3. Moral activists believe that the highest moral value for lawyers is integrity. They also believe in doing what they can for the client, within the law and the professional code. However, they would not violate their personal values. Unlike zealous advocates and responsible lawyers, they don’t believe in ‘leaving behind’ their own moral values when they’re at work.
4. Ethics of care lawyers reject the idea of a hierarchy of moral values, so they probably wouldn’t want to pick one highest moral value. If they did, it would be about care for others. They also believe in doing everything they can for their client within the law and th
Court or negotiation: is it more ethical to resolve disputes through negotiation?
Carrie Menkel-Meadow argued that:
“The adversary system is inadequate, even dangerous, for satisfying a number of important goals of any legal or dispute resolution system.”
Are there types of case which are best resolved through court rather than negotiation? How would you decide – what factors are important?
How well-defined are the rules of professional behaviour in negotiation?
Walter Steele suggested that lawyers cannot take advantage of another’s vulnerability in court because of rules of procedure and evidence. No such rules restrict lawyer behaviour during negotiation, only “ill defined rules of ethics. Consequently, the tactic of bullying and abuse of position has free reign in negotiation.” (p. 1389).
Negotiation in criminal cases
Officially, plea bargaining – negotiating a guilty plea in exchange for a lesser charge or lower sentence – isn’t allowed in the UK. However, the Court of Appeal decided that a judge could reveal the maximum sentence which a defendant would receive if they admitted guilt: R v Goodyear  EWCA Crim 888.
In that case, the judge had said that he would not impose a custodial sentence if the defendant chose to plead guilty. When the defendant did plead guilty, the judge sentenced the defendant to six months’ imprisonment, suspended for two years. The Court of Appeal had to decide whether the judge was bound by what he had said before the defendant chose to plead guilty – in other words, should the judge have avoided imposing a prison sentence?
Was this plea bargaining? Jonathan Herring suggests that it wasn’t for the following reasons:-
- There was no room for discussion or negotiation of a deal
- The defendant could not agree to a lesser sentence in exchange for the prosecution giving up a more serious charge
Herring suggests that this opportunity creates a difficult situation for lawyers:
“Plea bargaining or indicative sentencing can put the lawyer in a difficult position. If a client has been pleading not guilty, but then the judge indicates what the sentence will be given in the event of a guilty plea, how should the lawyer advise the client ….
The line between informing a client of the consequences of his or her decision and recommending a decision is a fine, but crucial one. It is, perhaps, an unrealistic one. Clients are bound to ask their lawyers’ advice and seek an indication of what their chances at trial are. The lawyer is in a particularly difficult position when the client maintains innocence, but indicates a willingness to plead guilty to take advantage of the lower sentence. Is counsel who enters a guilty plea for a client in such a case misleading the court?”
What would be your answer to the question at the end of this quote – would a client entering a guilty plea for a client who maintained their innocence (but chose to plead guilty for a lower sentence) be misleading a court?