It’s hard to believe that it’s been two months since the AALS Annual Meetings in New Orleans (was it cold there or what?).  I had promised to give a report about the ADR Section’s program, and it’s taken me longer to get to this than anticipated to to it.  Nevertheless, the program was first-rate and still deserves attention.  But before I get to that, here’s a shout out to Kelly Olson from Arkansas-Little Rock, the Section’s new Chair-Elect.  Congrats Kelly !!

The program was split into four separate presentations, so I’ll be summarizing each posting over the next few weeks.  I kicked off the program with a presentation entitled An Empirical Look at Attorney Negotiation Ethics which summarized my research (with Jess Alberts) on whether attorneys follow the Model Rules of Professional Conduct when negotiating.  To gather data I created a survey instrument based on the DONS Problem, a great role-play scenario for teaching negotiation ethics.

The thumbnail sketch of the situation is that the client made a representation to the opposing side, which forms the basis of liability for what appears to be a slam dunk case.  Even the opposing side believes it is liable and has scheduled negotiations simply to discuss the amount of a settlement, and to be clear, a suit has not been filed, only threatened.  Just before the negotiation is to begin, the client informs the lawyer that he recently discovered that was wrong about the critical fact (he truly thought his information was correct), but not to tell the other side during the negotiations.

This is where the survey began and the first question was, “Would you agree with the client’s request?”  In response to this question, 19% of our 734 respondents said they would agree with the client’s request.  However, agreeing to the request is agreeing to engage in a fraudulent negotiation scheme in clear violation of Rule 4.1.  When asked the justification for doing so, three rationales received almost universal endorsement – the model rules protect the confidentiality of this info, the attorney-client privilege protects this info, and the client asked me to do so.  Of the remaining respondents, 62% indicated they would refuse the client’s request and another 19% were unsure what they would do.  To those who answered no and not sure to the first request, we posed a second client request – you can reveal the information only if asked whether the client has DONS.  To this question 13% of this subset of respondents indicated they would agree to the request, 64% said they would not, and the remaining 23% were not sure what they would do.

When all was said and done, nearly one-third of the respondents indicated they would agree one of the client’s two overtures, and only half indicated that they would refuse the client’s overtures, thereby following the Model Rules.  We also did more follow-up questioning which suggested a couple of other reasons for these results: confusion about what constitutes a fraudulent misrepresentation and confusion surrounding Rule 4.1’s operative term “material fact.”  Furthermore, we found that lawyers believe there is widespread violation of Rule 4.1.  Clearly there is a problem with applying the rule in practice, particularly when strong lawyering values are in conflict.  An early version of the paper resulting from the study is available here.

With that information in mind, Rebecca Hollander-Blumoff from Washington University in St.Louis led us into the challenges of teaching negotiation ethics in the classroom.  I’ll post about her presentation in the next week or so.