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What if your client makes the threats?

Ethics in Negotiation/Mediation

Shirish Gupta

March 3, 2017

Schools of Thought

Cal Statutes

Rule of Court 3.855: Impartiality

Rule of Court 3.854: Confidentiality

Mediator must explain confidentiality rules, including those applicable to caucuses

  • Bus. & Prof. Code §6068: Duty of an attorney to employ only those means as are consistent with the truth…. and never mislead the judge or any judicial officer by an artifice or false statement of fact or law.
  • Duty to disclose matters potentially affecting impartiality. Duty to disclose is continuous.
  • Duty to remain impartial throughout the process. Mediator must withdraw if believes unable to be impartial, or if any party questions impartiality.
  • No solicitation of business from a participant during mediation proceedings.

Rule of Court 3.853: Voluntary Participation

  • Mediator must conduct session in a manner that supports voluntary participation and self-determination
  • Parties may withdraw at any time
  • Refrain from coercing any party to make a decision or to continue to participate in the mediation

  • Bus. & Prof. Code §6106: The commission of any act involving…dishonesty, constitutes a cause for disbarment or suspension.

ABA

Jack & Diane

Agenda

Debrief & Questions

Rule 3.3:

A lawyer shall not knowingly: (a) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact previously made to the tribunal by the lawyer …

Rule 4-1:

In the course of representing a client a lawyer shall not knowingly:

(a) Make a false statement of 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 …

  • Schools of Thought
  • Relevant Ethical Rules
  • Role-Play
  • Debrief & Questions

Rule 8.4:

It is professional misconduct for a lawyer to …

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Mediation Confidentiality

Which can't you do in a civil negotiation under the Cal. Rules of Prof. Conduct?

  • Evid Code 1115-1128
  • 1119(a) Statements
  • 1119(b) Writings
  • 1112: Admissible if EVERYONE agrees
  • 703.5: Mediator incompetent except for crime

In a commercial negotiation, can you ethically:

  • Lie about inconsequental facts
  • Threaten to report opposing counsel to the State Bar
  • Misrepresent material facts
  • Conceal material facts
  • Warn the other side that he could be reported to the SEC for insider trading

Rule 5-100:

A member shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil dispute.

None of these is expressly prohibited by the Rules. But they would be under ABA Model Rules, which Cal is likely to adopt.

Don't forget about common law fraud and an “act involving dishonesty” under Bus. & Prof. C. §6068

JAMS Mediator/Arbitrator

UC Hastings Adj. Prof.

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