Hi all and happy new year! For class this year, I am adding a delightful hilarious new video that talks about negotiation ethics in a really accessible way. The very talented Liz Tippett has created, as one of her Law Lab projects, a video interviewing Michael Moffitt on his latest article published in the University of Chicago Law Review discussing Settlement Malpractice (recent co-winner at the AALS for best article on Professional Responsibility so you don’t need to only take my word on how great this article is).
In any case, the video is funny, short, and a great way to start the discussion on the types of behavior that can really get you into trouble. I’ll be using it in ADR, negotiation, and ethics. And, by the way, Liz has other great videos for use in class including on secret settlements and getting “OK Boomer”ed at work. Have fun!
Professor Schneider,
I love this video! You’re right, it’s accessible. I was able to see how ethics in settlement is really about informing a client so the client can make decisions about what is best for himself/herself. After all, all that matters is that the client is happy at the end of a settlement. Settlement is a way for parties to resolve their disagreements and distribute resources in the most acceptable way possible to the parties. Like the end of the video says, “it’s not that hard” to inform a client about what is going on in a settlement (about the client and his or her resources!), and I agree.
I also think that Professor Tippett is smart to think about the ethics violations in terms of describing lawyers. So “over-eager,” “criminal,” or, “arrogant” were ways to think about the lawyers just based on what they did. This is reputation. The judgments the lawyers made were so unprofessional that they may be, and were, described as being a certain kind of lawyer (and one that violates the law!). This means, for example, that a lawyer can be so arrogant that he or she violates the law.
This also reminds me of the class discussion about why a client hires a lawyer to negotiate for them in the first place. There is a reason why they do so. And, as a lawyer, you need to figure this out (what they really want and what they can’t do by themselves).
After watching this video, I decided that good lawyering in settlement situations is about good, lawful habits. It is about reminding yourself about balance and good judgment that is needed in a settlement. So, not telling the parties that the settlement is confidential (so their daughter posts about it on Facebook) or not telling a client about an offer because the lawyer thinks the offer is too low, is a bad, unlawful habit.
A lawyer does not have to be the most ethical he or she can be in a settlement (though some lawyers try to be!), but it means that in a settlement, when a lawyer is operating on his or her own autopilot, the lawyer needs to stop, think, and remind himself/herself about the balance, common sense, and experiences of life that the client is expecting him/her to think about. Having ethical habits like this is only going to pay off in the end, and it is not going to hurt you, the lawyer, or your client.