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Ethics in Negotiation

Given at JAMS San Francisco on January 27, 2016

Shirish Gupta

on 11 April 2017

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Transcript of Ethics in Negotiation

Ethics in Negotiation/Mediation
Threaten to report opposing counsel to the State Bar
In a commercial negotiation, can you ethically:
Jack & Diane
Debrief & Questions
Shirish Gupta
March 3, 2017

JAMS Mediator/Arbitrator
UC Hastings Adj. Prof.
Schools of Thought
Relevant Ethical Rules
Debrief & Questions
Schools of Thought
Rule 5-100:
A member shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil dispute.

Which can't you do in a civil negotiation under the Cal. Rules of Prof. Conduct?
Lie about inconsequental facts
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
What if your client makes the threats?
Warn the other side that he could be reported to the SEC for insider trading
Misrepresent material facts
Conceal material facts
Cal Statutes
Bus. & Prof. Code
: 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.
Bus. & Prof. Code
: The commission of any act involving…dishonesty, constitutes a cause for disbarment or suspension.
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 8.4:
It is professional misconduct for a lawyer to …
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

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 …
Rule of Court 3.854
: Confidentiality
Mediator must explain confidentiality rules, including those applicable to caucuses
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

Rule of Court 3.855: Impartiality
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.
Mediation Confidentiality
Evid Code 1115-1128
1119(a) Statements
1119(b) Writings
1112: Admissible if EVERYONE agrees
703.5: Mediator incompetent except for crime
Full transcript