Unraveling the Negotiator's Ethical Paradox
| Jurisdiction | Kansas,United States |
| Citation | Vol. 80 No. 3 Pg. 09 |
| Pages | 09 |
| Publication year | 2011 |
Thinking Ethics
Unraveling the Negotiator's Ethical Paradox
By David Rubenstein, Washburn University School of Law, david.rubenstein@washburn.edu
Editor's note: This article originally appeared in the January 2011 Journal; however, due to unexpected errors, this article is being reprinted in its entirety.
The Problem
To what extent may a lawyer ethically mislead an adversary in negotiations? The question unveils an ostensible paradox for negotiating lawyers: On the one hand, lawyers should represent their clients' interests "zealously" on the other, lawyers are generally obligated to be "truthful" toward others. If strategic success for a client demands some degree of deception toward opposing counsel, how can a lawyer fulfill the dual ethical ideals of client loyalty and truth to others? In some ways, he or she cannot — thus the paradox. But a partial solution (if it may be called that) comes from unraveling traditional notions of zeal and truth.
Unraveling Zeal
Although often regarded as an ethical axiom, zealous representation is not required by the black letter of the Kansas Rules of Professional Conduct (Rules). Rather, references to zeal are found only in the nonbinding preamble and comments to the Rules. And even then, it is a qualified zeal.
In particular, the comments to Rule 1.3 note that "[a] lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." In the immediately following comment, however, zeal is qualified by the admonition that "a lawyer is not bound to press for every advantage that might be realized for a client." Similarly, the preamble to the Rules notes that "[a]s advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." That is, zealous representation for a client is limited by the lawyer's other professional obligations. Most pertinent here, the preamble specifically states that "[a]s negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others." (emphasis added)
Unraveling Truth (Out-of-Court)
Like zeal, truthfulness is a qualified concept under the Rules. Kansas Rule 4.1(a) provides that a lawyer "shall not" knowingly "make a false statement of material fact or law to a third person." On its face...
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