Deception as a Legal Negotiation Strategy: a Cross-jurisdictional, Multidisciplinary Analysis Towards an Integrated Policy Reforms Agenda

Abstract

This thesis is a cross-jurisdictional, multidisciplinary study of the use of potentially deceptive conduct in negotiation by lawyers and the regulation of such deceptive conduct through the legal ethics codes. Negotiation is considered a vital skill for every legal practitioner. Negotiation is also a fairly unregulated dispute resolution process yet ubiquitous in practice. One of the alleged acceptable tactics in negotiation is the use of some deception in certain forms. Potentially deceptive tactics such as bluffing, puffing, exaggerating the value of a deal, and certain settlement offers are considered a natural and acceptable part of the bargaining dance under acceptable negotiation theory. This is especially true in business. Legal negotiators, however, work under very strict ethical codes of conduct which prohibit deception, misrepresentation, lying and fraud in any capacity. A lawyer is not supposed to lie – ever. This is due to the legal professional’s multi-faceted duties of loyalty to the client, the court, the justice system, and the public interest. However, over the last few decades, legal professionals have incurred a negative perception of being liars and manipulators who themselves run afoul of the law and do not serve their clients’ best interests. While legal ethics codes are meant to curtail the deceptive behaviours of legal professionals, it is not entirely clear whether such attempts are successful or ever can be successful in light of acceptable negotiation practices which include some forms of deception. This thesis focuses on four main research questions related to deception in legal negotiation. First, the thesis addresses whether lawyers engage in deception in negotiation. Second, the thesis discusses whether legal ethics codes address this issue by conducting a comparative study of the legal ethics codes of four common-law jurisdictions. Third, the thesis presents an original analysis of the legal ethics violations cases of one common-law jurisdiction. Finally, the thesis recommends a tripartite set of strategic, integrated policy reform proposals aimed at addressing the issues related to lawyer deception in negotiation. Analysing the issue in a multidisciplinary capacity is essential to a better understanding of the role of ethics in the legal profession and the effect of regulating certain practices in negotiation. Through this understanding, the various stakeholders in the legal system are better able to assess the extent to which the legal profession can successfully support lawyers in their duties to their clients, the courts, and the public interest whilst also maintaining a successful, ethically-focused practice.

Date of Award	9 Oct 2010
Original language	English
Supervisor	Laurence Boulle (Supervisor) & Rachael Field (Supervisor)