Full Text

Deception as a Legal /egotiation Strategy:
A Cross-Jurisdictional, Multidisciplinary Analysis

Towards an Integrated Policy Reforms Agenda
Presented by
Avnita Lakhani
Submitted in Fulfilment of the Requirements of the Degree of
DOCTOR OF PHILOSOPHY
Bond University
Faculty of Law
Queensland, Australia 4229
August 2010
TABLE OF CO/TE/TS
Declaration ......................................................................................................................
Certification ................................................................................................................
Acknowledgments ......................................................................................................
Publications .................................................................................................................
Thesis Abstract ............................................................................................................
1. CHAPTER 1 I/TRODUCTIO/ A/D RATIO/ALE ............................................. 1

1.1. Introduction ... 1
1.2. Background to the Study ... 2
1.3. Significance of the Study .................................................. 5
1.4. Contribution to Knowledge .............................................. 7
1.5. Overview of Research Methodology ........................ 8
1.6. Research Problem..............................................................................................10
1.7. Definition of Key Terms....................................................................................19
1.8. Organisation of Thesis......................................................................................25
1.9. Chapter Conclusion...........................................................................................28
2. CHAPTER 2 REVIEW OF LITERATURE ........................ 30

2.1. Introduction ..................................................................................... 30
2.2. Competing Perspectives .............................................................. 32
2.2.1. Lies versus Deception: Competing Definitions............... 32
2.2.2. Deception as a Negotiation Strategy ................................ 35
2.2.2.1. Harms Caused by Deception ............................. 37
2.2.2.2. Perceived Benefits of Deception in Negotiation. 39
2.2.3. Definition of Success in Negotiation .......................... 41
2.3. Theoretical Framework .................................................................... 46
2.3.1. Theories of Law ................................................................ 46
2.3.2. Theories of Ethics ............................................................. 50
2.3.2.1. Introduction .................................................... 51
2.3.2.2. Ethics, Legal Ethics, and Morality Distinguished .. 52
2.3.2.3. Overview of Dominant Theories of Ethics............53
2.3.3. Theories of Legal Ethics .................................................... 55
2.3.4. Theories of Negotiation and Negotiation Process ......... 68
2.3.5. Theories of Negotiation Ethics ...................................... 74
2.3.6. Theories of Deception and Lies in Practice ....................... 81
2.3.7. Decision-Making Theories Affecting Legal Negotiation . 83
2.3.8. Theories of Lawyer-Client Relationships and Legal
Negotiation..........................................................................................92
2.4. Conceptual Framework ................................................................ 95
2010 Avnita Lakhani ii 9-Aug-10

2.5. Synthesis of Literature Review ........................................................ 96
2.5.1. Introduction ....................................................................... 97
2.5.2. Research About Deception/Lying ..................................... 102
2.5.3. Research About Legal Negotiation ................................. 118
2.5.4. Research About Legal Ethics .......................................... 121
2.5.5. Research About Lawyers Bargaining Behaviour ........... 134
2.5.6. Research About Lawyers Bargaining Behaviour
and Ethics ........................................................................ 139
2.5.7. Research About Lawyers Bargaining Behaviour and Deception
......................................................................... 144
2.6. Critical Analysis of Literature Review ........................................... 146
2.6.1. Summary of Findings ...................................................... 146
2.6.2. Strengths .......................................................................... 149
2.6.3. Weaknesses ...................................................................... 151
2.6.4. Gaps in Literature Review/Research ............................... 154
2.7. Chapter Conclusion ......................................................................... 160
3. CHAPTER 3 ALLEGED DECEPTIVE BEHAVIOURS OF LAWYERS ............... 162

3.1 Introduction .................................................................................... 162
3.2 Lawyers Deceiving Clients ............................................................ 165
3.3 Lawyers Justifying Deceptive Behaviour ...................................... 172
3.4 Deception in Negotiation and Personal Injury ............................... 178
3.5 Actionable Deception and the Trade Practices Act, 1974 (Cth) .... 181
3.6 Common Deceptive Techniques in Negotiation ............................. 185
3.6.1 Legal Classifications of Deceptive Conduct .................... 189
3.6.2 Summary Analysis of Lawyers Most Common Deceptive
Behaviours in Negotiation ............................................... 193
3.7 Chapter Conclusion ........................................................................ 195
4. CHAPTER 4 EFFORTS BY PROFESSIO/AL ETHICS CODES TO REGULATE

DECEPTIVE BEHAVIOURS I/ /EGOTIATIO/ ................................................ 197
4.1 Introduction ................................................................................... 198
4.2 International Perspectives United States, Canada, Hong Kong . 200
4.3 Australian Perspectives Queensland ........................................... 215
4.4 Cross-Jurisdiction Summary Analysis ........................................... 222
5. CHAPTER 5 THE SUCCESS OF PROFESSIO/AL ETHICS CODES I/

CO/TROLLI/G LAWYERS DECEPTIVE BEHAVIOUR ................................... 230
5.1 Introduction (including a definition of success) ............................. 230
5.2 Historical Perspective of Lawyer Discipline in Queensland .......... 234
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5.3 Introduction to Queensland Legal Ethics ........................................... 237
5.4 Unprofessional Conduct Generally ................................................ 239
5.5 Unsatisfactory Professional Conduct ............................................. 240
5.6 Professional Misconduct ................................................................ 242
5.7 Meaning of Conduct Under Legal Profession Act ......................... 243
5.8 Aggravating and Mitigating Circumstances ................................... 245
5.9 Penalties and Punishments ............................................................. 247
5.10 Queensland Ethics Violation Cases ................................................ 249
5.10.1 Ethics Violation Cases Alleging Misleading/Deceptive Conduct
(1996 2006) ................................................... 254
5.10.2 The Mullins Case Deception in Negotiation ................ 261
6. CHAPTER 6 THE FOU/DATIO/ FOR CHA/GE ........................................... 274

6.1 Introduction ...................................................................................... 274
6.2 Lawyer Deceptive Behaviours in Negotiation are a Reality ............ 276
6.3 Legal Ethics Codes are Insufficient to Curtail Deceptive Negotiation
Behaviours ........................................................................................ 277
6.4 Legal Ethics Cases in Queensland Demonstrate Lack of Effective
Enforcement of Deceptive Negotiation Behaviours .......................... 282
6.5 Studies of the Legal Profession Recommend Change ........................... 286
6.6 Failure of Prior Proposed Solutions and a Call to Action ................. 299
6.7 Chapter Conclusion ........................................................................... 317
7. CHAPTER 7 IMPLICATIO/S FOR LAW REFORM ........................................ 320

7.1 Introduction ...................................................................................... 320
7.2 Policy Reform Proposals A Tripartite Response ........................... 328
7.3 Legal Regulation Reforms ................................................................ 329
7.4 Ethical Standard Setting Reforms ..................................................... 344
7.5 Institutional Design Reforms ............................................................ 365
7.6 Implementing Behavioural Changes Generally ................................ 375
7.7 Implementing the Proposed Policy Reform Proposals ..................... 390
7.8 Chapter Conclusion ........................................................................... 395
8. CHAPTER 8 THESIS SUMMARY A/D CO/CLUSIO/S .................................. 396

8.1 Introduction ....................................................................................... 396
8.2 Implications for Further Research ..................................................... 401
8.3 Implications for Practice ................................................................... 402
8.4 Relationship of Results to Theory ..................................................... 404
8.5 Thesis Summary and Conclusion ...................................................... 408
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9. APPE/DICES ...................................................................................................... 411
9.1 Appendix 1 List of Tables and Figures .......................................... 412
9.2 Appendix 2 Queensland Ethics Violations Cases (1996 - 2007) Summary
Analysis ............................................................................ 414
9.3 Appendix 3 Queensland Ethics Violations Cases (1996 - 2007)
Analysis for Aggravating / Mitigating Circumstances ..................... 415
9.4 Appendix 4 Queensland Ethics Violations Cases (1996 - 2007)
Cases Per Year (Deceptive or Misleading Conduct) 416
10. BIBLIOGRAPHY ............................................................................................. 417
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DECLARATIO/
Any studies in this thesis constitute work carried out by the candidate
unless otherwise stated.
The thesis is less than 100,000 words in length, exclusive of footnotes, tables,
figures, bibliography and appendices, and complies with the stipulations set out for the
degree of Doctor of Philosophy by Bond University in Queensland, Australia.
2010 Avnita Lakhani vi 9-

Aug-10
CERTIFICATIO/
To the best of my knowledge and belief, I hereby declare that this
submission is my own original work, except as acknowledged and cited in the
text. All sources used in the study have been cited, and no attempt has been
made to project the contribution of other researchers as my own.
To the best of my knowledge and belief, it contains no material previously published
or written by another person, except where due reference is made in the text of the thesis.
Avnita Lakhani
9 August 2010nita Lakhani
This work is copyrighted to the author and protected under all applicable national and
international copyright laws @o portion of this work shall be copied or used in any format
or medium without the authors express written consent or as expressed and consented to
in an agreement. Proper acknowledgement and citation must be given in all
circumstances. The author reserves all rights to be identified as the author of this thesis.
2010 Avnita Lakhani vii 9-Aug-

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ACK/OWLEDGME/TS
Throughout this journey, four key individuals have been instrumental to my

development as a person and a professional. They deserve recognition and gratitude.
First and foremost, Soli Deo Gloria.
I wish to thank my thesis supervisors, Professor Laurence Boulle (Bond

University) and Senior Lecturer Rachael Field (Queensland University of
Technology) for their positive and supportive guidance during my PhD
candidature. As a result, I have been able to bring my ambition to life.
I also wish to thank Mr Christian Kelly (Bond University) for his consistent,
positive, and unfailing support during my candidature. Christian was the very first
individual I met at Bond University and he has consistently been an example of
Bond Universitys values and focus on service and excellence.
Finally, I wish to thank Mr Lincoln Blake (IBM Australia) for the opportunity
to work on a wonderful, challenging account and for supporting my personal and
professional goals. Lincoln is an exceptional person and a shining example that
positive results, service excellence and effective leadership can go hand in hand
with passion, sound ethics and good judgment. This, in turn, has reinforced in me
the values of IBM which will surely grow and stay with me as I develop further as
a person and a professional.
Thank you so very much.
2010 Avnita Lakhani viii 9-Aug-

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PUBLICATIO/S
Publications Arising Out of This Thesis
Avnita Lakhani, The Fog Has Not Lifted Section 198J of the NSW Legal
Profession Act in Light of Acceptable Negotiation Theory and Principles (2006)
18.1 Bond Law Review 61; also published in ADR Bulletin as Parts 1 and 2 (2006).
Avnita Lakhani, The Truth About Lying as a Negotiation Tactic: Where
Business, Law, and Ethics Collideor Do They? (2007) Part 1/2, 9 ADR
Bulletin 6; also accepted for publication in Brief, The Journal of the Law
Society of Western Australia (2007).
Avnita Lakhani, The Truth About Lying as a Negotiation Tactic (Paper
th
presented at LEADRs 9 International ADR Conference, Wellington, New
Zealand, September 2007).
Avnita Lakhani, Deception as a Negotiation Tactic: Fact or Fiction (Paper
presented at kon gress, LEADRs 10th International ADR Conference,
Melbourne, Victoria, 9 September 2009).
Avnita Lakhani, Deception as a Negotiation Tactic: A Study of the Views and
Perceptions of Practitioners Update (October 2009). Update is a monthly
publication of LEADR.
Avnita Lakhani, Deception as a Negotiation Tactic: A Study of the Views and
Perceptions of Practitioners (2010) 7(2) Rutgers Conflict Resolution Law Journal 1.
Other Publications
Available on request
Conference Presentations Related to This Thesis
Presenter Cairns Law Conference, Cairns, Queensland, Australia (July 2006).

Presenter National Mediation Conference, Hobart, Tasmania, Australia (May 2007).
Presenter LEADRs 9th International ADR Conference, Wellington, NZ
(Sept 2007).
Presenter BURCS Seminar, Gold Coast, Queensland, Australia (May
2006 / Jan 2007).
Presenter kon gress, LEADRs 10th International ADR Conference,
Melbourne VIC (Sept 2009).
Presenter International Legal Ethics Conference IV, Stanford, California
(July 2010).
2010 Avnita Lakhani ix 9-Aug-10

THESIS 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 professionals 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.
2010 Avnita Lakhani x 9-Aug-10

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.
2010 Avnita Lakhani xi 9-Aug-

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CHAPTER 1
I,TRODUCTIO, A,D RATIO,ALE
We are what we repeatedly do. Excellence, then, is not

an act, but a habit.
1
~ Aristotle
This chapter provides an introduction and rationale for undertaking this
research project and the investigation into a specific set of research questions. A
background to the study is followed by a discussion of the significance of this study
as well as the studys contribution to knowledge. The chapter concludes with an
overview of the research methodology, a statement of the problem, research
questions, hypotheses (where applicable), and organisation of the thesis.
1.1 I,TRODUCTIO,
2
Negotiation is long considered an essential skill of a legal professional, if not
3
the essential skill of an effective legal professional. While negotiation, or bargaining
1
Thinkexist.com, Aristotle quotes (2009) <http://thinkexist.com/quotes/aristotle/2.html> at 9 August
2010.
2 th
John Carvan, Understanding the Australian Legal System 74 (5 ed, 2005). (The term lawyer
collectively describes members of the legal profession barristers and solicitors.). Similarly, the term
legal professional as used in thesis refers to barristers and solicitors. The terms lawyer, attorney, and
legal professional are used interchangeably to mean a qualified member of the bar of the legal
profession in a particular jurisdiction. See also Rex R Perschbacher, Regulating Lawyers
Negotiations (1985) 27 Arizona Law Review 75, 75-76, n2 (Negotiation is one of the most important
activities of the practicing lawyer. It is the dominant method of resolving civil and criminal disputes and
is also important in a non-litigation or transaction context such as in setting contract terms.); Carrie
Menkel-Meadow, Legal Negotiation: A Study of Strategies in Search of a Theory (1983) 4 American
Bar Foundation Research Journal 905, 911 (.legal negotiators put together the millions of daily
transactions that keep social, economic, and legal structures functioning)
3
William M Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S Schulman,
Educating Lawyers: Preparation for the Profession of Law (2007) 111 (stating that in the late1970s,
the American Bar Association specifically required the teaching of negotiation in law schools after a
report on lawyer competency). See also American Law Institute - American Bar Association,
Enhancing the Competence of Lawyers: The Report of the Houston Conference XI-XII
(1981); Mark Osler, The Role of Regotiation in Criminal Law Teaching (2006)
2010 Avnita Lakhani -1- 9-Aug-10

as it is often called, is something most people engage in on a daily basis, there is
now particular attention being paid to how legal professionals negotiate because of
the special rules and constraints to which lawyers are subject. One of these factors
is the extent to which legal ethics codes impact a lawyers use of potentially
deceptive tactics in negotiations. In addition, these constraints vary across legal
jurisdictions and even countries. While research in the area of legal negotiation
behaviour is limited, research into the bargaining ethics of legal professionals is
even more scant. This thesis contributes knowledge to this important and emerging
4
area of interest amongst practitioners, academia, lawmakers and society at large.
1.2 BACKGROU,D TO THE STUDY
This thesis is about the study of the relationship between lawyers, the practice
of negotiation in the context of the legal system, the ethics by which lawyers must
perform their duties within the legal system and within society and the extent to
which lawyers are permitted to use, or use regardless of permission, certain
acceptable negotiation strategies, namely deception. Prior to discussing the
background to the study, it is recognised that many lawyers may not practice in a
strictly adversarial legal setting where the issues of deception in negotiation are
likely more relevant. For example, many lawyers are engaged in non-litigious and
non- adversarial work such as preparation of documents, where adversarial
negotiation tactics such as deception might not exist.
<http://lsi.typepad.com/lsi/2006/12/the_role_of_neg.html> at 9 August 2010 (Over 90% of criminal

cases plead out in most jurisdictions, so negotiation is a key skill for criminal practitioners.).
4
Robert J Condlin, Socrates' New Clothes: Substituting Persuasion for Learning in Clinical
Practice Instruction (1981) 40 Maryland Law Review 223 (discussing the major unstudied
variable in the justice of the legal system the patterned behaviour of individual lawyers.).

In understanding the importance of the study and its contribution to
knowledge, attention to and recognition of several concepts is necessary.
5
First, negotiation, by and large, may be construed as a social good in that the
act of bargaining is part of the fabric of society. Society has always used negotiation as
6
the primary means of social currency to achieve personal or business objectives.
It is ubiquitous. Many consider negotiation to be a social process, the regulation of
7
which could be detrimental to social functioning. Negotiation, as a dispute resolution
process, has undergone an evolution from being a fairly unstructured and loose
interaction to being a more sophisticated, structurally defined process with its own
8
rules, both technical and ethical and, in some cases, varied by profession. While the
9
classical distributive bargaining technique is still used in such areas as personal
injury cases and contract negotiations, an integrative bargaining model, sometimes
5
Please refer to Section 1.7 (Definition of Key Terms) for a definition of negotiation as
used in this thesis.
6
See, eg, Richard T Ritenbaugh, Regotiations, Deceptive (2009)
<http://bibletools.org/index.cfm/fuseaction/Topical.show/RTD/CGG/ID/3716/Negotiations-
Deceptive.htm> at 9 August 2010 (discussing Biblical verses Numbers 22:7-14 which entails the
biblical story of a labour negotiation between Balaam, Balak, and the princes as well as the
deceptions used to obtain personal or material gain). The reason for the alleged deception is the
desire to have the best of both worlds. That core reason does not appear to have changed
though, I argue, the means of achieving such desires is important. See also Robert Benjamin,
Swindlers, Dealmakers, and Mediators: A Brief History of Ethics in Regotiation (2004)
<http://www.mediate.com/articles/benjamin16.cfm#> at 9 August 2010 (There have been third
parties involved in brokering business deals, treaties, and conflicts since the beginning of time but
only in recent years have we begun to formalize and professionalize that role.)
7
James A Barnes, A Pack of Lies: Towards a Sociology of Lying (1996) 3 (discussing Arendt
(1968) and Barwise and Perry (1983) and the views of lying as central to human creativity,
conversation, and freedom). See also Avnita Lakhani, The Truth About Lying as a Negotiation
Tactic: Where Business, Law, and Ethics Collideor Do They? (2007) 9 ADR Bulletin 6.
8
By this I mean that the rules for acceptable bargaining in business may be different than
rules for bargaining in the legal system. See, eg, Benjamin, above n 6 (describing
negotiation as the heart of mediation and providing historical examples of negotiations and
the tensions created by its historical past through Biblical times).
9
Please refer to Section 1.7 (Definition of Key Terms) for a definition of key terms used in this thesis.

10
called principled negotiation, has gained in popularity through the publication of
11 12
negotiation books such as Getting to Yes and Getting Past Ro.
Second, lawyers negotiate constantly and on a daily basis; however, many
lawyers negotiate within a very specific context, namely the adversarial legal
system which appears to support litigation as the core means of dispute resolution.
By this I mean that the adversarial system, historically, is based on the notion of
every person having their day in court where the rules of litigation apply as opposed
to rules of mediation, negotiation, or other dispute resolution process. Adversarial
means and implies adversaries or competitors who are automatically on opposite
sides with opposing views. It is about winners and losers, about claiming as much
value out of the bargaining pie as one can for the benefit of ones client. It is about
client loyalty above all else. As such, an adversarial system might naturally
embrace a distributive bargaining model. Once again, it is acknowledged that some
lawyers may engage in transactional or non court-related legal work that does not
consist of adversarial bargaining. In such cases, these lawyers may adopt other
negotiation styles. However, nearly all lawyers generally have special rules and
ethical codes that appear to prevent them from using certain distributive bargaining
strategies, such as an acceptable level of deception, that are naturally acceptable
to all other non-legal negotiators/bargainers.
Finally, ethics and the extent to which negotiations should be ethical is becoming
an ever-increasing area of critical analysis and concern. With the evolution
10
Principled negotiation is the term used by Fisher and Ury to describe interest-based negotiations. It
consists of four main principles: 1) separate people from the problem; 2) focus on interests, not
positions; 3) invent options for mutual gain; and 4) insist on objective criteria.
11
Roger Fisher and William Ury, Getting to Yes: Regotiating Agreement Without Giving In (1981).
12
William Ury, Getting Past Ro: Regotiating Your Way from Confrontation to Cooperation (1993).
2010 Avnita Lakhani -4- 9-Aug-

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of business and law in an era of globalisation, both law and business are instantly
international services and subject to the cross-cultural, cross-disciplinary, and cross-
jurisdictional forces that collide with ethics. These ethics include societal ethics (the
ethical norms of a society, community, or culture under which lawyers operate),
bargaining or negotiation ethics (the personal ethics paradigm of negotiators) and legal
ethics (the ethics codes imposed on lawyers). Ethics is often concerned with
expectations of truth and fairness so that the use of deception or deceptive negotiation
tactics, such as lying, would seem to violate the rules of ethical negotiation. Further, a
legal negotiator who uses deception could be considered unethical and in violation of the
legal ethics code. Yet when looking at acceptable negotiation theory and principles,
certain deceptive practices are considered permissible and expected.
The study aims to look at certain deceptive practices used by legal
professionals, how and why ethics codes attempt to regulate such conduct, and
whether the ethical controls imposed on the use of certain allegedly deceptive
negotiation tactics by legal professionals may or may not be successful.
1.3 SIG,IFICA,CE OF THE STUDY
This study is significant in four important ways. First, the seemingly troubling
and increasing negative perception of legal professionals by clients, legal
commissions, disciplinary tribunals and courts, is frequently attributed to lawyers
13
being perceived as deceptive and unethical. While the overall number of lawyers
13
See, eg, Gary A Hengstler, Vox Populi: The Public Perception of Lawyers: ABA Poll (1993) 79
American Bar Association Journal 60; American Bar Association Section of Litigation, Public
Perception of Lawyers: Consumer Research Findings (2002)
<http://www.abanet.org/litigation/lawyers/publicperceptions.pdf> at 9 August 2010; Daniel Dasey,
Judges lose publics confidence (4 May 2003) The Sun Herald
<http://www.smh.com.au/articles/2003/05/03/1051876898909.html> at 9 August 2010; Margaret
Simons, Lawyers Rot Moral Judges: Clayton Utz Chief, The Sunday Age (Melbourne), 4 August 2002,

may be honest, the negative perception created by a few lawyers in a self-regulated
profession may be enough to engender concern and a review of legal ethics codes.
Second, law increasingly plays a role on the international stage yet the
jurisdictional standards of proper ethics with respect to negotiation are inconsistent.
One countrys legal ethics codes may condone certain levels of acceptable
deception while another countrys ethics patently forbid any form of deceit or
misrepresentation during negotiations. At the same time, a lawyers clients may play
by their own, perhaps contradictory, ethics with respect to bargaining. Understanding
such tensions is critical in order for lawyers to navigate the bargaining minefield.
Third, understanding the tensions between law, ethics, and negotiation will
benefit policy makers so as to ensure that future policy affecting legal professionals
and their duties to the client, the courts, and the pursuit of justice takes into
account the impact of rules and ethical codes which constrain a lawyers ability to
serve the public interest. Furthermore, policy decisions which attempt to control
certain behaviours of legal professionals can account for reasonable societal
expectations of the duties carried out by legal professionals.
Finally, this study is significant in reviewing the existing theoretical
framework for negotiation and introducing a potentially new theoretical
framework for the negotiation process. By doing so, this study fills a gap in the
existing knowledge with respect to fully understanding the implications of
imposing ethical controls on the negotiation behaviour of legal professionals.
3. Full article is available at <http://www.theage.com.au/articles/2002/08/03/1028157860572.html> at

9 August 2010.

1.4 CO,TRIBUTIO, TO K,OWLEDGE
This thesis provides considerable contribution to knowledge in various areas
including the cross-disciplinary areas of negotiation theory, legal ethics, negotiation
ethics, and negotiation practice and legal education. The most significant contribution,
as discussed below, is to the area of public policy and law reform.
First, as discussed further in Chapter 7, this thesis presents a
comprehensive, integrated set of policy reform proposals aimed at addressing the
complex issues represented by the research questions outlined in Chapter 1, section
1.6. These policy reform proposals target legal regulation, ethical standard setting,
and institutional design, three components of sustainable, measurable change.
A second contribution of this thesis to public policy and law reform is a
more thorough and comprehensive knowledge base from which to inform policy
making decisions that might affect legal professionals, especially in the area of
negotiations and legal ethics. This knowledge base is primarily in the form of the
literature review which takes an interdisciplinary approach to investigating and
analysing current research on negotiation, ethics, legal decision-making and
notions of how legal professionals conduct their negotiation practices.
A third significant contribution of this thesis to public policy and law reform is
an integrated framework for analysing and addressing a research problem which,
even today, is a source of debate without action or resolution. While most scholarly
attempts to address the issue of deception in legal negotiation have included isolated
suggestions and proposed solutions, this thesis strives to take a more
multidisciplinary, cross-jurisdictional view of the issues and proposes an integrated
framework for addressing the research question. This integrated framework can be

replicated across jurisdictions and implemented with minimal effort and
maximum benefits.
Finally, this thesis addresses the challenges of implementing proposed
behavioural changes by introducing and discussing some viable methods of
executing the policy reform proposals that will allow policy makers and other
key stakeholders to benchmark, test, and measure the successful
development of policy in the target areas.
1.5 OVERVIEW OF RESEARCH METHODOLOGY
The purpose of this section is to provide an overview of the research
methodology used in this thesis. The research methodology used in this study is
broad, varied, multidisciplinary, and cross-jurisdictional. This methodology is used to
ensure reliability and validity of the results with respect to the research questions.
14
A particular study may have a specific research perspective. In the
context of this study, the research perspective is limited to a positivist inquiry
approach in the areas of law, legal negotiation, and legal ethics from the
perspective of common-law jurisdictions. A positivist inquiry, most commonly
used and respected within legal academia, means that the research entails a
review and analysis of law and related legal document such as statutes, codes of
conduct, tribunal decisions, judicial opinions, law journal articles, law review
articles, and case law decision in law and ethics. Further, a review of literature in
related areas such as negotiation, psychology, behavioural modification,
business, and economics is undertaken, where necessary and applicable.
14
See generally Raymond L Calabrese, The Elements of an Effective Dissertation & Thesis:
A Step-by-Step Guide to Getting it Right the First Time (2006).

The research design of this thesis is primarily a theoretically based,
qualitative study, one which is common to the field of law. A key aspect of
this design is to not only describe but to analyse certain key variables of the
15
research question in attempting to explain the cause of a phenomenon.
For example, if the use of deceptive negotiation practices is prohibited in
the legal profession then why are there so few cases of ethical violations by
legal professionals who use such practices, almost daily?
The central aspects of the research design consisted of the following main
tasks: 1) a catalogue and analysis of various tactics used by legal professionals
when employing a strategy of deception in negotiation; 2) an analysis of legal ethics
codes in various common-law countries, primarily Australia and United States with
some analysis of Canadian and Hong Kong legal ethics codes; 3) an analysis of
legal ethics cases decided in Queensland, Australia; 4) a set of strategic policy
reform proposals designed to address the issues raised by the study; and 5) an
analysis of methods used to successfully implement policy changes as related to the
policy reform proposals recommended herein.
Data collection involved the process of defining and collecting
information from which to conduct detailed analysis, present the findings, and
interpret the implication of the research findings on future policy reform.
Overall, I performed the following data collection and data analysis tasks:
! review and analyse existing literature to find what types of
tactics and behaviours legal professionals might associate with
a strategy of deception in negotiation;
15
See, eg, John W Cresswell, Research Design: qualitative and quantitative approaches
(1994); Bruce W Tuckman, Conducting Educational Research (3rd ed, 1988).
2010 Avnita Lakhani -9- 9-Aug-

10
! review and analyse literature to understand the difference
between various models of ethics, especially legal ethics
versus philosophical ethics versus bargaining ethics, if any;
! review and analyse legal ethics codes to understand the
kinds of deceptive behaviours the legal ethics codes is
attempt to regulate or control in various jurisdictions;
! review and analyse negotiation literature to determine to what
extent deceptive behaviour is allowed or not allowed and the
impact of bargaining ethics on such; and
! review and analyse measures of success of negotiation such as
efficiency, agreement, and good outcome in order to determine if
regulating deceptive behaviours via the legal ethics code could
be considered successful both in terms of successful negotiation
and as determined against negotiation theory and principles.
1.6 RESEARCH PROBLEM
This section discusses the research problem that is the focus of
this thesis including a statement of the problem, research questions,
limitations and delimitations.
1.6.1 Statement of the Problem
In the context of a thesis, Clark, Guba, and Smith state that a problem
establishes the existence of two or more juxtaposed factors, which, by their
interaction, produce: (1) an enigmatic or perplexing issue, (2) yield an undesirable
2010 Avnita Lakhani - 10 - 9-Aug-

10
consequence, or (3) results in a conflict which renders the choice from
16
among available alternatives moot.
Prevailing negotiation literature contends that certain kinds of deception are
permissible, and even expected, as part of the bargaining process, while other deceptive
17
tactics are considered unethical or sometimes illegal. Juxtaposed to that, the legal
ethics codes for certain countries, though not all, allow for a certain amount of deception
when lawyers negotiate on behalf of their clients. Sometimes the bounds of the legal
ethics codes conflict with societal norms of what is expected of lawyers and the standard
of behaviour expected in the negotiation process. In addition, over the last decade or so,
there has been a significant decline in the publics trust and perception of the justice
18
system with the primary issue being the lack of integrity and honesty of lawyers.
Finally, there have been recent attempts to not only impose greater candour within the
bargaining process but to call for amendments to legal ethics codes to fully restrict a
19
lawyers attempts to use deceptive tactics in any context. So far, there has not been an
adequate assessment of this problem to propose a viable, practical solution. Therefore, a
more thorough analysis of prevailing ideas and knowledge using a multidisciplinary
approach is necessary.
16
David L Clark, Egon G Guba, Gerald R Smith, Functions and Definitions of Functions of a Research
Proposal (1977) 6. <http://polaris.gseis.ucla.edu/jrichardson/dis290/clark.pdf> at 9 August 2010. See
also Fred N Kerlinger, Foundations of Behavioral Research (1973) 16-17 (A problem, then, is an
interrogative sentence or statement that asks: What relation exists between two or more variables?).
17
See Chapter 2 (Review of Literature) for more information on this topic. By illegal I am referring to
certain deceptive behaviour that may be considered fraudulent and is therefore generally considered
to be illegal as well as in violation of professional ethics codes.
18
See, eg, Hengstler, above n 13; American Bar Association Section of Litigation, Public Perception of
Lawyers: Consumer Research Findings, above n 13; Dasey, above n 13; Simons, above n 13.
19
See, eg, Eleanor Holmes Norton, Bargaining and the Ethics of Process in Carrie Menkel-Meadow
and Michael Wheeler (eds) Whats Fair: Ethics for Regotiators (2004) 270-298; John Ladd, The Quest
for a Code of Professional Ethics: An Intellectual and Moral Confusion in Geoffrey C Hazard Jr and
nd
Deborah L Rhode, The Legal Profession: Responsibility and Regulation (2 ed 1988) 105; Carrie
Menkel-Meadow, Lying to Clients for Economic Gain or Paternalistic Judgment: A Proposal for a
Golden Rule of Candour (1990) University of Pennsylvania Law Review 761
2010 Avnita Lakhani - 11 - 9-Aug-10

1.6.2 Research Questions
As discussed before, negotiation, a critical function of lawyers, intersects both
law and ethics and provides fertile ground for research. The ways in which lawyers
conduct negotiations or behave as negotiators may have an impact on how clients or key
stakeholders perceive the legal professions ability to administer justice.
With an understanding of this context, the focus of this study is an
attempt to answer the following research questions:
(a) What are some potentially deceptive negotiation tactics as
commonly used by lawyers as negotiators?
(b) How do legal ethics rules attempt to control the potentially deceptive
negotiation tactics as might be used by legal professionals?
(c) Are attempts by legal ethics rules to regulate the use of potentially
deceptive negotiation tactics by legal professionals successful?
(d) How can the prevailing approach be reformed to improve the ways in
which the profession might more successfully regulate the
use and impact of potentially deceptive negotiation tactics
by legal professionals?
Prior to discussing the research hypotheses, this study acknowledges that there may
be other specific jurisdictional statutory controls on negotiation behaviour which are
considered out of scope for the purposes of this thesis and this study. Some of these
include, for example, the requirement of good faith in negotiation in such areas as
retail lease disputes and franchising disputes, the evolution of the negotiation pledge
in Victoria, Australia, and the use of collaborative negotiation models which
contractually require candour and transparency. While such legislation is important to

the evolution of attempts to control negotiation behaviour, the focus of this
study is on the legal ethics codes to which every practicing lawyer is subject
within their practicing jurisdiction.
1.6.3 Research Hypotheses (where applicable)
As the research design of this study is a qualitative research
methodology, detailed research hypotheses are not applicable.
However, given that one aspect of this study consists of a detailed
analysis of a common-law jurisdictions ethics cases, research hypotheses in this
context may be useful. The following are research hypotheses relate specifically
20
to the qualitative study of ethics violation cases in Queensland, Australia:
1. Where deception is used by a lawyer in a negotiation context,
the lawyer will be punished for unethical conduct, cited either
as unprofessional conduct or practice or professional
misconduct, in violation of professional ethics codes.
2. Lawyers who practice in a jurisdiction where certain deceptive
practices in negotiation are allowed will not be punished under
the professional code of ethics for engaging in such conduct.
3. Lawyers who practice in a jurisdiction where deception in
negotiation is not allowed will be punished for the use of
deception in negotiation under the professional code of ethics.
4. Deception in negotiation is deemed not acceptable unless specifically
indicated or outlined in a jurisdictions professional code of ethics.
20
See Chapter 5, Section 5.10 (Queensland Ethics Violation Cases) for more information on this topic.

It is expected that a post-doctoral study would include and benefit
from a quantitative study using measurable hypotheses with a target
audience of legal professionals.
1.6.4 Limitations
Limitations are potential weaknesses in the design or
21
methodology of the study that potentially restricts the studys scope.
There are three possible limitations of this study design. First, the geographic
scope is limited to select common-law countries, namely Australia, United States, Hong
Kong, and Canada. In addition, there may appear to be a greater reliance on US sources
on the primary topic relative to sources from other common-law countries. This may be
because of the breadth of literature and perspectives available in the US regarding the
topic of legal ethics rules to control negotiation behaviour as well as debate surrounding
some of the controversial provisions of the American Bar Associations Model Rules of
Professional Conduct. This is meant to provide a perspective and basis for discussing the
topics herein and not intended to convey that these perspectives or issues necessarily
exist in other common-law countries studied in this thesis. However, the issue of whether
legal ethics codes are effective in controlling lawyer behaviour, especially in negotiation,
is ripe for all common-law countries because these professional ethics codes serve as
the basis for the self-regulation of the profession in common-law countries. In addition,
the duties, task, and obligations of lawyers in common-law countries are similar to the
extent that recommendations based on an understanding of one common-law countrys
legal ethics rules, such as those of the United States or Canada, for example, might be
21
Enrique J Murillo, Jr, Murillo method: A guide (2005)
<http://coe.csusb.edu/Murillo/method3.htm> at 9 August 2010; Calabrese, above n 14, 12.

useful for other common law such as Australia and Hong Kong. In the end,
the perceived reliance on sources from one country serves to only to
educate and benefit others rather than to indicate or imply the dominance of
one countrys views on the topic over another.
Second, the absence of comparing a civil law country to the common law
jurisdictions in this thesis or to a system that is culturally unique means that the results
and recommendations may vary where such distinctions exist. On the other hand, this
limitation is appropriate because civil law and common law systems are different. This
potential limitation does not restrict the value of the findings of this study since Australia,
United States, and a particular province in Canada have taken different approaches with
respect to the use of ethical codes of conduct to control deceptive negotiation practices
by legal professionals. Therefore, there is great benefit in a comparative study and such
analysis will further provide a foundation for future studies across more legally and
culturally diverse systems and jurisdictions.
Third, the regulatory scope of the study is limited to looking at ethical codes
of conduct for legal professionals as well as cases dealing with the violation of
professional ethics codes. Professional ethics codes are the primary source of
guidance for how lawyers ought to behave in practice. These professional ethics
codes provide the legal professions regulatory controls for lawyers such that
lawyers who violate these ethics rules are subject to professional sanctions.
A final potential limitation of this study is the analysis of the ethics violation
cases of a single common-law jurisdiction, Queensland, as opposed to conducting
an analysis across legal jurisdictions. The purpose of using a single common-law
jurisdiction is two-fold. First, the ethics violation cases in Queensland are readily

10
available through a public register. Second, analysing the ethics violation cases of a
single jurisdiction helps to establish the framework and guidelines for conducting
future post-doctoral studies. Therefore, this potential limitation does not deter from
the value of this thesis in contributing to knowledge of the research problem,
research questions, subsequent findings and policy reform proposals.
1.6.5 Delimitations
Delimitations are the self-imposed boundaries used to delimit the
22
scope of the study.
The focus and scope of the study is based on an evolving delimitation process.
After a preliminary review of many statutes, regulations, codes, and cases which
attempt to control the negotiation practices of legal professionals, it became clear that
the most direct and explicit source of regulating lawyer conduct in practice on a national
basis is the legal ethics codes. In addition, the legal ethics codes define and regulate
how lawyers ought to behave in their various functions, such as advocates, mediators,
and judges. This is not to say that there are no other statutory attempts to control
negotiation behaviour. As stated above, it is acknowledged that there may be other
specific jurisdictional statutory controls on negotiation behaviour, such as good faith
requirements, negotiation pledges, or contractually binding collaborative lawyering
agreements that mandate honesty. However, the legal ethics codes bind every
practicing lawyer in their profession, and sometimes personal, capacity. Therefore, I
concluded that a more focused study involving key variables would achieve the
objectives of this thesis in terms of answering a set of specific research questions and
making a viable contribution to knowledge.
22
University of South Dakota, 12 Components: Evaluating qualitative design (2005)
<http://www.usd.edu/ahed/analysis.cfm> at 9 August 2010; Calabrese, above n 14, 13.
10
The literature review, analysis, and published articles related to this thesis
revealed that one of the more persistent issues in the field is the seemingly
perpetual, yet scientifically unproven, notion that lawyers are deceptive and that
deceptive practices by lawyers in negotiations are the norm. A related issue involves
conflicting views on whether to condone the use of deceptive tactics by lawyers
engaged in negotiation, with some contending that there should be a rule or code of
conduct that imposes greater candour or truth in negotiations. This position appears
to be contrary to acceptable negotiation principles, theories, and practice. The
negotiation process and the ethics of legal professionals are under greater scrutiny
with the increased use of legal negotiation. Therefore, defining the scope of this
study to the intersection of law, ethics and negotiation, specifically as it pertains to
attempts by the legal ethics codes to regulate the use of deceptive tactics by legal
professionals, provides a significant contribution to knowledge.
Furthermore, because the common-law jurisdictions of Australia, United
States, and Canada appear to have taken different approaches in their professional
ethics codes in terms of regulating deceptive conduct of legal professionals, a
comparative analysis is insightful and provides the basis for further empirical studies.
While the study attempts to conduct a cross-jurisdictional and multidisciplinary analysis,
it does not attempt to discuss in detail the cross-cultural implications or multicultural
aspects of the research questions though some attention is warranted where it may
provide insight or explanation. A full and thorough analysis of the specialised topic of
cross-cultural negotiations is not within the scope of this study, though insights gained in
this study may be applied cross-culturally.

1.6.6 Assumptions
Kennedy states that [i]n research, assumptions are equivalent to axioms
in geometry self-evident truths, the sine qua non of research. In research, well-
23
constructed assumptions add to the studys legitimacy. Assumptions may take
the form of propositions to guide the inquiry in the form, for example, if we assume
24
x, then it follows that y. The following assumptions were made during this study:
1. Where the prevailing societal ethics was in line with the legal
ethics of the jurisdiction and did not condone the use of
deception in negotiation, there should be less tolerance for the
use of deceptive tactics among legal professionals.
2. Legal professional ethics codes regulate the deceptive practices
of legal professionals and punish accordingly.
3. Deception and the use of deceptive practices are generally
considered common practice in some legal negotiations.
4. The profession of lawyers (the professional body) recognise
that negotiation is a specific skill used by lawyers.
5. Regulatory bodies do not condone the use of deception in negotiation
unless specifically indicated, the presumption being that the use of
deception by all lawyers, in any capacity, is not acceptable.
6. If we assume that the legal ethics codes bar the use of deceptive
behaviour among legal negotiators, then it follows that violation of
these codes should result in significant numbers of ethics violation
23
Calabrese, above n 14, 14.
24
Robert Yin, Case study research: Design and methods (3rd ed, 2003); Calabrese, above n 14, 14.

cases against lawyers in a self-regulated profession with severe
consequences.
7. If we assume that the legal ethics codes do not bar the use of
deceptive behaviour among legal negotiators, then it follows
that violation of these codes should not result in significant
numbers of ethics violation cases against lawyers in a self-
regulated profession with severe consequences.
8. Where the law imposes controls on negotiation behaviour in
contravention of acceptable negotiation theory and principles, such
controls would undermine the goal of successful negotiations.
1.7 DEFI,ITIO, OF KEY TERMS
This section lists and defines the key terms that are central to this study and
used throughout this thesis. Unless otherwise indicated in the body of the
thesis, the terms listed in this section will have the corresponding meaning.
The key terms used in this thesis are as follows, in alphabetical order:
1. Bargaining defined as the competitive, win-lose situations
such as haggling over price that happens at a yard sale, flea
25
market, or used car lot.
2. Cross-jurisdiction defined as taking into account the views of
different geographic boundaries with the authority to exercise
26
power or administer justice. For example, in this thesis, the
legal jurisdictions taken into account are Australia, United
States, Canada, and Hong Kong.
25 th
Roy Lewicki, David M Sanders, and Bruce Barry, Regotiation (5 ed, 2006) 3.
26
Sara Hawker (ed), Colour Oxford Dictionary, Thesaurus, and Wordpower Guide (2002) 340.

3. Deception defined as the business of persuasion aided by the art of
selective display put into effect by two primary behaviours: hiding the
27
real and showing the false. It involves convincing another to believe
something which is either not true or not completely true.
4. Ethics includes the various theories and schools of ethics that
attempt to describe the kind of moral action, conduct, motive or
character that a society ought to embody, how society ought to
28
behave. Negotiation scholars define ethics as broadly applied
social standards for what is right or wrong in a particular
29
situation, or a process for setting those standards.
5. Lawyer defined as a person admitted to the legal profession
30
under the appropriate laws of a legal jurisdiction. In the
context of this thesis, the term lawyer encompasses both
barristers (specialist advocates) and solicitors.
6. Legal Ethics may be defined as [u]sages and customs among members
of the legal profession, involving their moral and professional duties
31
towards one another, towards clients, and toward the courts.
27
John W Cooley, Defining the Ethical Limits of Deception in Mediation (2004) 4 Pepperdine Dispute
Resolution Law Journal 263; See also David Nyberg, The Varnished Truth: Truth Telling and Deceiving
in Ordinary Life (1992) 66-67.
28 th
Blacks Law Dictionary (6 ed, 1990) 553; See also Lewicki et al, above n 25, 236; See also David A J
Richards, Moral Theory, the Developmental Psychology of Ethical Autonomy and Professionalism
(1981-1982) 31 Journal of Legal Education 359, 373 (describing ethics as a form of critical reasoning
used to develop universalist principles that apply to oneself and others); Gary Tobias Lowenthal, The
Bars Failure to Require Truthful Bargaining by Lawyers (1988-1989) 2 Georgetown Journal of Legal
Ethics 411, 413 (describing ethics broadly as desired conduct that is morally binding).
29
Lewicki et al, above n 25, 236.
30
See, eg, Legal Profession Act 2004 (Qld) s 5 (describing various definitions of lawyer under the
Act); Hawker, above n 26, 352.
31
Blacks Law Dictionary, above n 28, 894. See also Mirko Bagaric and Penny Dimopoulos, Legal
Ethics is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics (2003) QUT Law and

Legal ethics are the standards of what is right and wrong by legal
professionals who operate within the legal system. These standards are
generally documented and prescribed in each jurisdictions legal ethics
rules and/or codes of professional conduct. In addition, these standards
may be implicit by conduct as well as explicit by prescription.
7. Legal Regotiation defined as situations that occur when
parties try to find a solution to a complex problem within the
rules, codes of conducts, and limitations of the legal justice
system. Generally legal negotiation involves lawyers
representing client interests, which are generally opposing
32
interests. In the context of this thesis, legal negotiation
includes both distributive (common) and integrative situations.
8. Legal Practitioner defined as a lawyer who holds a current practicing
certificate or license in the relevant jurisdiction. In the context of this
thesis, the term legal practitioner includes both barristers (specialist
advocates) and solicitors. In addition, the terms legal practitioner and
lawyer are used interchangeably in this thesis.
9. Legal Regulation defined as the rules of law that are intended to
control behaviour and are considered part of the states normative
arsenal in regulating the conduct of members of society, re-enforcing
ethical standards for the good and providing disincentives for poor
Justice Journal 21; Gerald Wetlaufer, The Ethics of Lying in Negotiations (1990) 75
Iowa Law Review 1219, 1235-1236.
32
Russel Korobkin, A Positive Theory of Legal Negotiation (2000) 88 Georgetown Law
Journal 1789, 1809, n 24 (describing legal negotiation as one where the negotiator often is
an agent [lawyer] for a principal [client] who is not present at the bargaining table).

conduct. In the context of the legal profession, legal regulation
includes professional codes of conduct (ethics codes), court
rules, and laws regulating the legal profession such as the
Legal Profession Act 1987 in Australia.
10. Lie defined as a false statement made with the intent to deceive,
33
an intentional untruth. In the context of the legal system, a lie may
be defined as a statement made with the intent to deceive which
purports to state the existence, in unequivocal terms, of facts and
34
law contrary to the declarants express knowledge.
11. Morals (Morality) defined as individual and personal beliefs
35
about what is right and wrong. Morals are cognizable and
enforceable only by the conscience or by the... [moral sense]
36
of right conduct, as distinguished from positive law.
12. Multidisciplinary (Interdisciplinary) defined as taking an approach of
problem solving by drawing from multiple branches of learning
(disciplines) for the purposes of defining, analysing, and proposing
solutions. For example, in this thesis the disciplines of law, ethics,
business, psychology, and economics are used to define, understand,
analyse, and propose solutions around the research questions.
33
The Random House Dictionary of English Language (2nd ed, 1987) 1109; The Oxford English
Dictionary (2nd ed, 1989) 899; Cf Wetlaufer, above n 31, 1223 (defining lying to include all means by
which one might attempt to create in some audience a belief at variance with ones own.); Sisela Bok,
Lying: Moral Choices in Public and Private Life (1978) 14 (defining a lie as any
intentionally deceptive message which is stated.).
34
Thomas F Guernsey, Truthfulness in Negotiation (1982-1983) 17 University of Richmond Law
Review 99, 105.
35
36
Blacks Law Dictionary, above n 28, 1008 (Moral, part 2).

13. Regotiation defined as both integrative (non zero-sum) and
distributive (zero-sum) bargaining. Some scholars use the
terms win-win, win-lose, or principled negotiation. In this
37
thesis, the term negotiation includes all these variations.
14. Ron-zero-sum Bargaining (also known as integrative or mutual
gains scenario) defined as when parties goals are linked so
that one persons goal achievement helps others to achieve
their goals [such that there is a]positive correlation
38
between the goal attainments of both parties.
15. Occupation defined as an activity in which one engages; the
work in which one is regularly employed; the principal business
39
of ones life; vocation.
16. Profession defined as a disciplined group of individuals who adhere to
high ethical standards and uphold themselves to, and are accepted by,
the public as possessing special knowledge and skills in a widely
recognised, organised body of learning derived from education and
training at a high level, and who are prepared to exercise this knowledge
and these skills in the interest of others. Inherent in this definition is the
concept that the responsibility for the welfare, health and safety of the
community shall take precedence over other
37
Lewicki et al, above n 25, 3 (win-win situations such as those that occur when parties are trying to
find a mutually acceptable solution to a complex conflict.); Russell Korobkin (ed), Regotiation Theory
and Strategy (2002) 1 (an interactive communication process by which two or more parties who lack
identical interests attempt to find a way to coordinate their behaviour or allocate scarce resources in a
way that will make them better off than they could be if they were to act alone.).
38
39
Merriam-Webster Dictionary Online, Occupation <http://www.merriam-
webster.com/dictionary/occupation> at 9 August 2010; Merriam-Webster Dictionary Online, Vocation
<http://www.merriam-webster.com/dictionary/vocation> at 9 August 2010.

40
considerations. A trade or occupation is transformed into a
profession through the the development of formal qualifications
based upon education and examinations, the emergence of
regulatory bodies with powers to admit and discipline members,
41
and some degree of monopoly rights.
17. Professional Code of Ethics defined as the formal statement of
standards which the professional consults to guide his or her
behaviour. It represents a statement of the roles that professionals
ought to assume in specific situations. To that extent, a code is a
formalized statement of role morality, a unitary professional
42
conscience. Professional ethics can also be defined as the
43
moral principles that regulate the behaviour of lawyers in a role.
18. Strategy defined by business scholars as the pattern or plan that
integrates an organizations major targets, policies, and action
44
sequences into a cohesive whole. As applied to negotiations, a
strategy is the overall plan to accomplish ones goals in a negotiation
40
Australian Competition and Consumer Commission, Definition of a profession
<http://www.accc.gov.au/content/index.phtml/itemId/277772> at 9 August 2010.
41
Alan Bullock and Stephen Trombley, The Rew Fontana Dictionary of Modern Thought (1999) 689;
Wolters Kluwer Fin. Servs., Inc v. Scivantage, 525 F. Supp. 2d 448 (S.D.N.Y. 2007) (Baer, D.J.)
(stressing that [a] profession is not a business. It is distinguished by....a duty to subordinate financial
reward to social responsibility...to conduct themselves as members of a learned discipline, and
honorable occupation.); Australian Competition and Consumer Commission, Definition of a
profession, above n 40 (citing Dr John Southwick, Australian Council of Professions view, in Can the
professions survive under a national competition policy? Proceedings of a joint conference on
competition law and the professions, Perth, April 1997); Professions Australia, Definition of a
profession (2009) <http://www.professions.com.au/defineprofession.html> at 9 August 2010.
42
Reed E Loder, Tighter Rules of Professional Conduct: Saltwater for Thirst (1987-88) 1 Georgia
Journal of Legal Ethics 311, 318.
43
Robert Condlin, The Moral Failure of Clinical Legal Education (1983) The Good Lawyer 317.
44
Lewicki et al, above n 25, 105 (citing Henry Mintzberg and James Brian Quinn, The Strategy
Process: Concepts, Context, Cases (1991)).

and the action sequences that will lead to the accomplishment of those
45
goals.
19. Tactic defined as short term, adaptive moves designed to enact or
pursue broad (or higher-level) strategies, which in turn provide
46
stability, continuity, and direction for tactical behaviours. Tactics
are subordinate to strategy and are considered structured
manoeuvres driven by strategic considerations.
20. Zero-sum Bargaining (also known as distributive) defined as
where the goals of two or more people are interconnected so
that only one can achieve the goala competitive situationin
which individuals are so linked together that there is a negative
47
correlation between their goal attainments.
1.8 ORGA,ISATIO, OF THESIS
This thesis is divided into eight primary chapters, organised as follows. The
reader may refer to the Table of Contents in order to access specific chapters directly.
o Chapter 1 (Introduction and Rationale) sets the foundation of the
thesis by introducing the primary topic of the study, the background to
the study, the significance of the study, contribution to knowledge, the
research questions, an overview of the research methodology, a
definition of key terms, and the organisation of the thesis.
o Chapter 2 (Review of Literature) reviews the state of existing literature
in the primary cross-disciplinary areas of the thesis and those which
45
46
Ibid.
47

surround the research questions. Chapter 2 reviews and
analyses primary research in the areas of ethics, legal ethics,
negotiation, and deception. After a critical analysis of existing
literature, Chapter 2 attempts to place the importance of this
qualitative research project in the context of existing knowledge
to highlight the contribution to knowledge of this thesis.
o Chapter 3 (Alleged Deceptive Behaviours of Lawyers) provides a
detailed analysis and discussion of the research findings related to
the first research question, namely whether lawyers use potentially
deceptive behaviours in negotiation, to whom these behaviours are
directed and the justifications used by lawyers to condone such
behaviour. The purpose of this chapter is to establish that lawyers
tend to use certain potentially deceptive behaviours in negotiation
and attempt to justify these behaviours in a variety of ways,
including the argument that such conduct is not prohibited under
the legal ethics code of the prevailing jurisdiction.
o Chapter 4 (Efforts by Professional Ethics Codes to Regulate
Deceptive Behaviours in Regotiation) addresses the second research
question, namely whether professional ethics codes attempt to
regulate potentially deceptive negotiation behaviour and to what extent
the professional ethics codes consistently do so. The purpose of this
chapter is to discuss the findings of a qualitative study of five common-
law legal ethics codes. The study consists of a detailed analysis of
2010 Avnita Lakhani - 26 - 9-

Aug-10
whether these legal ethics codes discuss negotiation and attempt to
regulate deceptive or misleading conduct in negotiation.
o Chapter 5 (The Success of Professional Ethical Codes in Controlling
Lawyers Deceptive Behaviour) focuses on the third research
question, namely whether professional ethics codes appear to be
successful in controlling the potentially deceptive behaviours of
lawyers in negotiations. In addressing the third research question, I
undertook a unique comparative analysis of ethics violation cases in
Queensland over a ten-year period. Chapter 5 presents the results of
this qualitative study of the ethics violation cases where the alleged
violation consisted of misleading or deceptive conduct on the part of
the lawyer with a focus on any cases where the violation occurred in a
negotiation. The results of the qualitative analysis are interpreted and
discussed in light of the overall purpose of this thesis and the research
questions established in Chapter 1.
o Chapter 6 (The Foundation for Change) provides a summary of key
insights from Chapters 3, 4, and 5 in order to establish a foundation
for the policy reform proposals presented in Chapter 7. Chapter 6 also
includes the findings of several studies of the legal profession that
focus on the extent to which consumers and the profession expect
honesty and integrity in the conduct of legal professionals. These
studies further reinforce the primary objective of Chapter 6, namely to
establish the imperative for law and policy reforms and a call to action
in addressing the issues highlighted by the research questions.

Aug-10
o Chapter 7 (Implications for Law Reform) discusses a tripartite
response to the issues presented and addressed in the previous
chapters. This chapter consists of a set of integrated policy reform
proposals in the areas of legal regulation, ethical standard setting
and institutional design with a discussion of key benefits. In
addition, this chapter presents a summary of key theories and
techniques for encouraging behavioural change followed by a
discussion about the goals and benefits that can be achieved by
implementing the specific policy reform proposals.
o Chapter 8 (Thesis Summary and Conclusions) provides a
summary of the thesis and concluding remarks including
suggestions for further research, implications of the findings to
practice and the relationship of the results to existing theory.
o Appendices include a variety of resources including a listing of figures
and tables, a listing of cases, and the detailed results of the analysis of
the Queensland ethics violation cases discussed in Chapter 5.
o Bibliography includes the resources consulted in the production
of this thesis.
1.9 CHAPTER CO,CLUSIO,
A fundamental question facing legal professionals today is how to maintain
the integrity of the profession. This includes a financially viable legal practice as well as
confidence in the public about the legal system. This issue arises as a result of the
negative perceptions of lawyers as liars and manipulators even as lawyers are subject

to very strict ethical codes of conduct with regards to the use of deception
in legal practice, including negotiations.
Negotiation is the one central task that lawyers engage in throughout the course
of their daily practice. As such, how lawyers negotiate has a direct impact on how clients
are served and how those same clients perceive the legal profession. In part, how
lawyers should behave in practice is established through guidelines in the professional
ethics codes. In general, these professional ethics codes prohibit deceptive conduct.
However, lawyers as negotiators work in a world where it appears that some forms of
deception are not only acceptable but expected. In such an environment, questions arise
as to whether lawyers do actually engage in deceptive conduct in violation of
professional ethics codes, whether professional ethics codes effectively curtail such
behaviours and whether such attempts are successful or undermine the success of
negotiations. If it is determined or perceived that the professional ethics codes do not
effectively curtail the use deception in negotiation, the question arises as to what can be
done to effectively address this ongoing issue.
The purpose of this chapter has been to set the foundation, rationale,
and research questions to guide an enquiry into this complex issue through
addressing four primary research questions. Chapter 2 is a review of literature
followed by an examination of the theoretical and conceptual frameworks that
underlie the study of these research questions.

CHAPTER 2
REVIEW OF LITERATURE
Curiosity begins as an act of tearing to pieces or analysis.

48
~ Samuel Alexander
This chapter provides a review of the literature designed to assimilate,
summarise, and synthesise the existing published scholarly research in the
areas of law, ethics, and negotiation which serve as the primary focus of this
study. After introductory remarks, this chapter discusses competing
perspectives, theoretical frameworks in the areas relevant to the study, and a
conceptual framework for the proposed research questions. The chapter then
provides a synthesis of the literature review, a critical analysis of existing
published scholarly research, and a discussion of strengths, weaknesses,
and gaps within the literature. Finally, this chapter highlights the importance of
this study in addressing some of the gaps in the existing body of research.
2.1 I4TRODUCTIO4
This literature review establishes the foundation which informs the need to address
each of the research questions outlined in Chapter 1. First, this literature review
describes and discusses the existing research into the cross-disciplinary areas affecting
this study, namely legal negotiation, negotiation practices, and legal ethics. Second, this
literature review serves to identify the gaps that will be addressed by this study. Finally,
this literature review provides a basis for the policy reform proposals
48
Brainyquote.com, Analysis Quotes (2009)
<http://www.brainyquote.com/quotes/keywords/analysis_2.html> at 9 August 2010.

outlined in Chapter 7 for addressing the issue of deception in legal negotiation.
As Einstein once noted, one cannot expect to achieve different results by doing
49
the same thing over and over again. It is in this spirit of a fresh,
multidisciplinary perspective that the literature review aims to establish the need
for this study and for implementing an integrated set of policy reforms.
The criteria used for this literature review include: (1) empirical studies or
significant recent research and analysis conducted on the thesis topics; (2)
studies or significant research and analysis related to legal negotiations or
general negotiations that might have a bearing on the research question(s);
(3) studies or significant research and analysis related to societal ethics, legal
ethics and negotiation ethics as well as the use of deception in negotiation;
and (4) studies or significant research and analysis related to implementing
behavioural changes, policy development and policy implementation.
The literature review focuses on a review of scholarly publications relevant to
the problem statement and research questions as outlined in Chapter 1. A review of
literature outside the bounds of the research questions was also conducted in order to
get a balanced and cross-disciplinary view of the research problem, subsequent
analysis, and recommended policy reforms. For example, ethics is primarily related to
philosophy and, therefore, research into the philosophical context of ethics was
49
Brainyquote.com, Albert Einstein Quotes (2009)
<http://www.brainyquote.com/quotes/quotes/a/alberteins133991.html> at 9 August 2010
(Insanity: doing the same thing over and over again and expecting different results.).

10
50
done to better understand similarities and differences with bargaining ethics and
legal ethics.
2.2 COMPETI4G PERSPECTIVES
The purpose of this section is to briefly discuss some of the competing
perspectives in the field as they relate to key topics relevant to this
thesis. A discussion of competing perspectives is designed to
acknowledge the different perspectives across disciplines related to
the problem statement and research questions outlined in Chapter 1.
The purpose of discussing competing perspectives in these areas is to
ensure that the reader is aware that such competing perspectives impact the ability
to answer the research questions and set the foundation for recommending the
policy reform proposals in Chapter 7. An understanding and clear definition of the
competing perspectives will also help contribute to knowledge.
2.2.1 Lies Versus Deception: Competing Definitions
One of the most obvious areas of some disagreement is whether lies
are the same as deception or only a form of deception and whether one can
be condoned while the other is not. This section considers these competing
definitions in light of its impact on the legal profession.
As defined in Chapter 1, a lie is a false statement made with the intent to
51
deceive, an intentional untruth. Some scholars distinguish between two
categories of lies and their distinct applications as presented below in Table 2.1.
50
Norton, above n 19, 282 (defining bargaining as a self regulated process by which parties with
different goals engage in strategic dealings until they agree upon an outcome, or until one or more of
them decides that agreement cannot be reached.).
51
The Random House Dictionary of English Language, above n 33, 1109; The Oxford English
Dictionary, above n 33, 899; Cf Wetlaufer, above n 31, 1223 (defining lying to include all means by

10
Table 2.1: Two Categories of Lies
52
Pure white lies / lies to save face
fairly harmless
meant to just grease the wheels of
discourse move things along
focus is still on achieving a mutually
acceptable agreement
lie is not intended to gain an advantage
over the other party or to disadvantage
the other party
Unlike pure white lies, if distributive lies are believed and effective, the liar
54
becomes richer in the degree to which the victim becomes poorer. Distributive lies
are inherently part of distributive bargaining because the assumption is that each
party is trying to claim the maximum value out of a fixed pie. Distributing bargaining
involves a win-lose mentality, where lying is central to gain maximum advantage.
Deception, on the other hand, can be defined as the business of persuasion
aided by the art of selective display put into effect by two primary behaviours: hiding
55
the real and showing the false. It is an intentional distortion of the truth so as to
mislead others in order to gain advantage for the practitioner such that deception,
56
rather than something being false, is at the essence of the lie.
which one might attempt to create in some audience a belief at variance with ones own.);
Bok, above n 33, 14 (any intentionally deceptive message which is stated.).
52
Wetlaufer, above n 31, 1225-1226. See also J Bowyer Bell and Barton Whaley, Cheating and
Deception (1991) 48-52.
53
Wetlaufer, above n 31, 1224-1227.
54
Wetlaufer, above n 31, 1227.
55
Cooley, above n 27, 263; Nyberg, above n 27, 66-67.
56
See, eg, Joseph W Caddell, Deception 101 Primer on Deception (2004) 1; Francis Mechner, Using
Behavioural Contingency Analysis to Classify the Various Forms of Deception (2009) 1-68 <
http://mechnerfoundation.org/newsite/downloads.html> at 9 August 2010; Bell and Whaley, above n 52,
48-52.

Deception may be of two varieties, concealing the truth or exhibiting false
information, both of which are described below in Table 2.2.
Table 2.2: Two Varieties of Deception

Concealing the Truth
includes the ability to dissimulate

or gloss over;
Withhold information
Dissimulate = concealing the truth,

like inconvenient or secret
information either by camouflage,
58
disguising appearance, or dazzle.
Example: in negotiation, concealing

ones true bottom line from the
opposing party
Example: in military tactics,

soldiers colour their faces and wear
clothing to resemble the jungle or
desert or other surroundings to
conceal themselves from the enemy
(camouflage)
Example: disguising oneself as

someone else so that you are not
recognised or mistaken for another
person (disguise appearance)
Lerman argues that regardless of the definition of either, both lies and
60
deception are morally identical in that the consequences are the same. In the
57
See, eg, Scott Gerwehr and Russell W Glenn, The Art of Darkness: Deception and Urban
Operations (2000) 16-18; Mechner, above n 56, 1-6.
58
Gerhwer and Glenn, above n 57, 16-18.
59
Caddell, above n 56, 1; Gerhwer and Glenn, above n 57, 16-18.
60
Lisa G Lerman, Lying to Clients (1990) 138 University of Pennsylvania Law Review 659, 663.

context of the legal system, some scholars argue that lies and deception mean
different things to lawyers. For example, Guernsey offers that a lawyers definition
of lying may be described as a statement made with the intent to deceive which
purports to state the existence, in unequivocal terms, of facts and law contrary to
61
the declarants express knowledge. By comparison, noted ethicist Sisela Bok
62
defines a lie as any intentionally deceptive message which is stated. Among
other things, Guernsey dismisses noted ethicist Sisela Boks definition of a lie as
being too broad in that it would preclude negotiation since inherent in all
63
negotiations is some element of an attempt to mislead the other side.
From the above discussion, it appears that the deception is imbedded
in the lie. Deception can be considered a negotiation strategy and telling a lie
is a tactic that may be used to achieve the goal of deceiving the other party by
expressly stating an untruth. While there is some common ground amongst
the competing views on the definition of deception or lies, there are strong
competing views on whether deception is an inherent negotiation strategy.
2.2.2 Deception as a 4egotiation Strategy
Whether deception is or should be an acceptable negotiation strategy attracts
considerable attention in both negotiation and legal literature. Negotiation literature
seems to generally accept and allow that at least some forms of deception are an
64
inherent part of the bargaining dance. In fact, some scholars argue that without
61
Guernsey, above n 34, 105; James J White, Machiavelli and the Bar: Ethical Limits on Lying in
Negotiation (1980) American Bar Foundation Research Journal 926 (stating unequivocally that
deception is part of every negotiation)
62
Bok, above n 33, 13.
63
Guernsey, above n 34, 105 n34.
64
See, eg, Lewicki et al, above n 25, 3; White, above n 60; Guernsey, above n 34, 105 n.34 (stating that
inherent in all negotiations is some element of an attempt to mislead the other side.). This view has

65
deception, there would be no true negotiation. The view here is that the
minor deception that occurs in negotiation is expected by the parties and
66
even has some merit. For example, Strudler argues that the truth can
67
actually get in the way of a good deal. He further contends that some forms
of deception, especially non-disclosure of a negotiators reservation price,

serve as a a signalling and symbolic device that even strangers, people who
neither know nor trust one another, can use to work their way to a reasonable
68
and mutually advantageous agreement in an otherwise risky environment.
In contrast, those who argue against the use of deception in negotiation,
particularly by lawyers, discuss the various harms caused by deceiving the
69
various stakeholders of the legal justice system. For example, Rubin holds a
universalist view that a lawyers societal obligations require honesty and good
faith towards opponents, even in negotiations. Similarly, Norton argues that
truth (i.e., absence of deception) is vital to negotiations, partly because it
underlies the choices that parties make in negotiation and to ensure the validity
70
and integrity of the agreement reached during negotiations.
been echoed in the various professional ethics codes and cases across international
jurisdictions including Australia and United States.
65
See, eg, White, above n 60, 926; Guernsey, above n 34, 105 n.34
66
Selene Mize, Is deception in negotiating unprofessional? (2005) The Sew Zealand Law Journal 246
(Nevertheless, it is clear that deception sometimes contributes to a better deal.).
67
Alan Strudler, On the Ethics of Deception in Negotiation (1995) 5(4) Business Ethics Quarterly
805; Mize, above n 66, 246 (Nevertheless, it is clear that deception sometimes contributes to a better
deal.).
68
Strudler, above n 67, 805.
69
Alvin B Rubin, A Causerie on Lawyers' Ethics in Negotiations (1975) 35 Louisiana Law Review
577
70
Norton, above n 19, 273-274. See also Geoge Sharswood, Professional Ethics (1844) 168-169
quoted in Maryland State Bar Assn v Agnew, 271 Md. 543, 548-49, 318 A.2d 811, 814 (1974) (
[f]rom the very commencement of a lawyers career, let him cultivate, above all things, truth,
simplicity and candour; they are the cardinal virtues of a lawyer.).

2.2.2.1 Harms Caused By Deception
The use of deception is negotiation is said to cause a variety of harms,
harms resulting either from the improper motives of the negotiator or the harmful
consequences of unethical conduct at negotiations, such as an unconscionable
agreement which takes unfair advantage of a negotiating party. As Lerman points
out, the cost-benefit analysis to elevate possible or actual consequences of a
deception is fraught with difficulties because of the indeterminacy of events and
71
the subjectivity of attempting to predict harmful consequences.
Lerman and many noted ethicists and legal scholars appear to agree
that the use of deception in negotiation, particularly by lawyers, creates
sufficient harm on multiple levels as to be considered unacceptable. The
harms potentially caused by deception appear to fall into four main categories.
First, deception can cause reputational harm to the individual lawyer and the
legal profession. Lerman argues that even the widespread use of small deceptions can
72
affect the professional integrity of the lawyer as well as the reputation of the bar.
The accepted and unpunished use of smaller deceptions can lead the
lawyer to conclude that such conduct is acceptable in all settings, thus
affecting the lawyers internal standard of integrity by increasing the
73
likelihood that the lawyer will engage in such conduct again.
71
Lerman, above n 60, 679. Lerman, in particular, refers to the harms caused by self-interested lawyer
deception of clients in her study, which is discussed below.
72
Lerman, above n 60, 679. See also Kang Lee et al, Taiwan and Mainland Chinese and Canadian
Childrens Categorization and Evaluation of Lie- and Truth-Telling: A Modesty Effect (2001) 19 British
Journal of Developmental Psychology 527 (...[lie-telling] creates an internal conflict on the part of the
lie-teller and cognitive dissonance in the lie-tellers belief system, which can be hazardous to the lie-
tellers psychological well-being.).
73
Lerman, above n 60, 680 (quoting ethicist Sisela Bok as this being a slippery slope). See also
Lerman, above n 60, n 81 (quoting Bok (1977) as stating that [a]fter the first liesothers can come
more easily. Psychological barriers wear down; lies seem more necessary, less reprehensible; the

Second, deception may harm the lawyers performance in their professional
duties and in their dealings with clients. If left unchecked, such deception can lead to
neglect, error, substandard performance, and lack of expertise necessary to assist
74
clients. Where a lawyer deceives a client, the lawyer may dehumanize him or her,
treating the client as an annoyancea way of asserting superiority in the
75
relationship with the client. This can also affect the way lawyers relate to other
lawyers by creating a culture of unnecessary competition between senior and junior
76
lawyers where the cost of deceiving one person is the exploitation of another.
Third, deception may harm the negotiation process itself. If deception is used
in negotiation, it can cause a negotiation to falter and the bridge, being built by the
77
negotiator to bring them together, to collapse. In addition, deception in the
negotiation process limits each partys freedom of choice by affecting the partys
78
ability to make informed choices based on all available information. In turn, this can
harm the relationship of the parties to the negotiation as deception tends to trigger,
exacerbate or cause to exceed the expected effects of the heuristics and biases that
79
already exist at the bargaining table. Ultimately, if freedom to make informed
choices is compromised between the parties, this may result in an imbalance of the
ability to make moral distinctions can coarsen; the liars perception of his chances of being
caught may warp.).
74
Lerman, above n 60, 682 n 86.
75
Lerman, above n 60, 683.
76
Ibid.
77
Cheryl Rivers (2004) What are they thinking? Considerations underlying negotiators ethical
decisions 3 (Paper presented at the 2004 Annual Meeting Academy of International Business
Conference in Stockholm, Sweden).
78
Lee et al (2001), above n 72, 527.
79
See generally Russell Korobkin and Chris Guthrie, Heuristics and Biases at the Bargaining Table (2004)
87 Marquette Law Review 795 (discussing the various heuristics and biases that operate at the bargaining
table). Deception would seem to make such heuristics and biases even more prevalent.

80
distribution of power between the negotiating parties. This leads to altering [the]
81
choices [of the negotiating parties] at different levels and may ultimately affect the
degree to which the resulting agreement is successful in resolving the dispute.
Finally, deception in negotiation may create economic harm. A successful
negotiation depends, in part, on trust among the parties. The use of deception in
82
negotiation can undermine this trust or create barriers to building trust. The parties to
83
a negotiation may incur losses sustained as a result of deception or deception may
84
cause economic harm due to benefits missed as a result of deception because the
negotiation may be seen as means to an economic end rather than as a process to
make informed choices and create mutually beneficial agreements.
While the actual and perceived harms caused by using deception in negotiation
would deter lawyers and parties from engaging in such conduct, deception continues to
be a key aspect of negotiations. It is even believed to contain benefits. The next section
provides a discussion of some perceived benefits of deception in negotiation.
2.2.2.2 Perceived Benefits of Deception in Negotiation Many
legal scholars, such as Strudler, Raiffa, White, and Mize, argue that
deception in the context of negotiation can have benefits, especially if one takes the
80
Sisela Bok, Truthfulness, Deceit and Trust in Carrie Menkel-Meadow and Michael Wheeler (eds)
Whats Fair: Ethics for Segotiators (2004) 80.
81
Bok, above n 80, 80 (Deception can make a situation falsely uncertain as well as falsely certain. It
can affect the objectives seen, the alternatives believed possible, the estimates made of risks and
benefits.).
82
Strudler, above n 67, 813. See also Bok, above n 80, 79 (describing deceit as violence in that it is
adeliberate assault on human beings. Both can coerce people into acting against their will. But deceit
controls more subtly for it works on belief as well as action.).
83
84
Strudler, above n 67, 815. Strudler discusses these impacts and ultimately concludes that with
respect to deception of reservation prices, deception is a necessary and natural part of the process,
such that we have to haggle for a deal.

view that deception is an inherent part of negotiations, regardless of whether
lawyers are involved.
First, Strudler argues against the notion that deception may cause an erosion of
trust. He states that, in fact, deception occurs because there is a lack of trust to begin
85
with. He uses the example of selling ones car to a potential buyer and disclosing ones
reservation price. In this scenario, Strudler argues that neither of us expects the other
86
to tell the truth about [our reservation] price and that doing so, especially after the deal
87
is concluded, will only be a source of resentment later.
Second, deception may also be such a predictable part of the process of
negotiation that it can be a mutually advantageous tool for both parties that might
88
enhance trust rather than erode it. Because both parties expect some form of
deception as part of the negotiation process, they have already included built-in
transaction costs to account for any time expended in bypassing any deception. Strudler
argues that because everything people do has costs, one must go beyond just stating
that deception incurs costs and is wasteful to actually finding ways to measure these
costs against costs of alternative actions, and to take into account the advantages that
89
flow from the action. For example, in the case of deceptive reservation prices, Strudler
states that the advantages we enjoy as a result of a successfully completed
85
Strudler, above n 67, 812; See also White, above n 60, 926; Guernsey, above n 34, 105 n. 34.
86
87
Strudler, above n 67, 812 (citing Howard Raiffa, The Art and Science of Segotiation: How to Resolve
Conflicts and Get the Best Out of Bargaining (1982) ( (referring to Raiffas advice that people should not
tell the other party their reservation price even after a successful negotiation).
88
Strudler, above n 67, 813; Mize, above n 66, 246 (Nevertheless, it is clear that deception sometimes
contributes to a better deal.).
89
Ibid.

negotiation may more than outweigh the disadvantages of the costs of
90
deceptive negotiation.
Finally, deception may, in some cultures and circumstances, be used as an
effective indirect communication process to see how one might react to offers, counter-
91
offers, and reservation prices. In summary, both opponents and proponents of
deception in negotiation seem to agree that such conduct may impact the success of
a negotiation.
2.2.3 Definition of Success in 4egotiation
A negotiation may be considered successful for many reasons. For example, a
negotiation may be successful simply because it is less costly and more economical than
pursuing litigation, thus being more cost-efficient. It is for this reason that the legal
system, at least with respect to civil disputes, is sometimes referred to as a landscape of
92
the vanishing trial as many more cases are settled via judge-assisted
90
Note: This is certainly a question well suited for an empirical study. See also Kang Lee et als study
on lie- and truth-telling discussed in later sections on perceptions of lie-telling in a cross-cultural study
involving Canadian, Chinese, and Taiwanese children.
91
Strudler, above n 67, 817 (discussing how deception can form part of an indirect process of
communication, a process that is advantageous because it is less risky than more direct
communication.). Strudler gives the example of a situation in Spain where a taxi driver was posturing
(using deception) to potentially get a higher rate for his services and to indicate he was willing to
bargain but Strudler did not understand this as a cultural aspect of commencing a negotiation with the
driver.
92
Mark Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and
State Courts (2004) 1(3) Journal of Empirical Legal Studies 459, 462-463 (showing through an
extensive study that the number of trials and the trial rates have been declining over four decades,
particularly in the United States federal courts). Cf David Spencer, The Vanishing Trial Phenomenon
(2005) 43(8) Law Society Journal 58 (In other words, the courts data show that there is no conclusive
evidence that trials in the court are vanishing.); John Lande, Shifting the Focus from the Myth of The
Vanishing Trial to Complex Conflict Management Systems, Or I Learned Almost Everything I Need to
Know about Conflict Resolution from Marc Galanter (2005) 6 Cardozo Journal of Conflict Resolution
191 (arguing that the vanishing trial is a myth and discussing the importance and role of trials in
conflict resolution).

settlement conferences, party-to-party mediation, or lawyer-to-lawyer
93
negotiation rather than trial.
As discussed above, these negotiations seem to invite a certain amount of
acceptable deception. However, regardless of the possibility that estimates of costs
94
and benefits of any action can be endlessly varied through successful deception,
proponents of using some deception in negotiation would argue that, in the final
analysis, the advantages of a successfully completed negotiation in which each
party is satisfied of the outcome may outweigh the disadvantages of some deception
95
as part of the bargaining process. Under this view, a negotiation is considered
successful because an agreement is reached, regardless of how ethically it was
achieved or perceived by the parties to the negotiation.
A negotiation may also be considered successful because it produces a
96
good outcome. Bordone, who also argues for having negotiation recognized
97
as an independent dispute resolution process, describes a good outcome in
negotiation as an agreement having the following characteristics:
93
It should be noted that settlement conferences and mediation have negotiation as the
foundation from which to bargain for concessions, cross-offers and the like.
94
Bok, above n 80, 80.
95
Strudler, above n 67, 813 (specifically discussing deception of reservation prices); White, above n
60, 929 (arguing that deception is inherently part of negotiation and attempts to regulate it are futile).
96
Robert C Bordone, Fitting the Ethics to the Forum: A Proposal for Process-Enabling Ethical Codes
(2005) 21 Ohio State Journal on Dispute Resolution 1, 16 (According to Bordone, a good outcome in
litigation may be defined by measuring whether justice was achieved, a right was vindicated, or
appropriate reparations were made whether the resolution of a matter is successful can often be
boiled down to a binary question of whether a particular litigant won or lost. The definition of a good
outcome in negotiation is different.)
97
Note: Negotiation could be considered a separate process as well as part of another dispute
resolution process, such as mediation. While Bordone recognises that negotiation is generally
understood to be part of mediation, he also argues for negotiation to be recognised as a separate
process as well because it is largely unregulated as practiced by lawyers or it is regulated by legal
ethics codes based on a litigation/adversarial philosophy. See also Norton, above n 19, 270-272 (....a
lawyer who would tell the whole truth in court might tell a half-truth if the same matter were being
resolved in the privacy of negotiations.).

a) is better than our best alternative to a negotiated agreement
(BATNA); b) meets our interests very well, the interests of the
other side acceptably, and the interests of any third parties who
may be affected by the agreement at least tolerably enough to
be durable; c) is the most efficient and value-creating of many
possible sets of deal terms; d) is based on a norm of fairness or
some objective standard, criterion, or principle that is external
to the parties themselves; e) identifies commitments that are
specific, realistic, and operational for both sides; f) is premised
on clear and efficient communication; and g) improves or at
least does not harm the relationship between the parties where
relationship is defined as the ability of the parties to manage
98
their differences well.
Against this standard, it would appear that any kind of deception during
negotiation, regardless of whether it is expected or acceptable, would only undermine
a foundation necessary to create a good outcome, primarily because such deception
99
would impact a level of trust necessary to achieve all the elements of Bordones
good outcome test.
A third way in which a negotiation may be deemed a success is due to its
efficiency in resolving the issues between the parties. This type of efficiency is
different from a negotiation being cost effective in that, for example, an efficient
negotiation may be costly but the issues are dealt with in a timely manner with
mutually beneficial outcomes. Peters argues efficiency is and ought to be a goal of
100
negotiations. Peters refers to the traditional micro-economic sense of efficiency
101
where the goal is the most optimal solution to an issue between the parties. Where
98
Bordone, above n 96, 16-18; See also Roger Fisher, A Code of Negotiation Practices for Lawyers
(1985) 1 Segotiation Journal 105, 107-108.
99
See, eg, Norton, above n 19, 273-275 (discussing the impact of standards of honesty in negotiation);
David Lax and James K Sebenius, Three Ethical Issues in Negotiation in Carrie Menkel-Meadow and
Michael Wheeler (eds) Whats Fair: Ethics for Segotiators (2004) 5-7.
100
Geoffrey M Peters, The Use of Lies in Negotiation (1987) 48 Ohio State Law Journal 1, 22.
101
Peters, above n 100, 23 (discussing the scenario where two people are fighting over an orange where one
person wants the orange to bake a cake and the other person wants to drink the juice. Peters states that the
most efficient and optimal solution is not to divide the orange into half but to give one person

102
a negotiation is considered a zero-sum game, Peters states that distinguishing
between lies and deception is not necessary or important with regards to efficiency
103
because the effect is the same. For example, in a used-car sales negotiation, both
parties have a maximum price or position. The buyers goal is to pay as little as
possible while the sellers goal is to get as much as possible for the used car. The
primary concern is getting a deal within the bargaining range such that if a deal is
104
reached, the negotiation is efficient and successful. In a zero-sum bargaining
situation, Peters argues that all settlements are efficient and that a failure to reach a
105
settlement is inefficient where there is a bargaining range. This view appears to
be based on the notion that parties to the negotiation will have an overlapping
bargaining range (e.g., a range between $5,000 (buyers limit) and $6,000 (sellers
limit)) where settlement is possible simply due to the range of alternatives as defined
by the bargaining range. As such, the parties will either reach agreement along some
point on the bargaining range or, if they find out each others price limit, simply find
106
another way to reach agreement. Therefore, even if deception is part of the
negotiation, a successful negotiation is one in which parties who have a bargaining
range, whether overlapping or not, reach a settlement.
the entire peel and the other person the juice of the orange, leaving both parties
satisfied of their interests.)
102
See Section 1.7 (Definition of Key Terms) for the definition of zero-sum bargaining as used in this thesis.
103
Peters, above n 100, 29-30.
104
Peters, above n 100, 26-30 (describing a zero-sum negotiation for a used car between two parties and the
impact of distinguishing between lies and other forms of deception). In Peters efficiency view, he appears to
focus on the immediate goal (agreement) in favour of more long-term issues of the use of deception (trust,
relationships, etc) presumably because many times such zero-sum negotiations are single or one-time
negotiations with price as the primary focus. Cf Peters, above n 100, 29-30 (citing the American Law Institutes
view that 'Hard bargaining between experienced adversaries of relatively equal power ought not to be
discouraged. Restatement (Second) of Contracts 176 comment f (1981)).
105
106

Under this view, and specifically in regards to zero-sum negotiations,
it appears that deception is simply an expected variable invited by the
competitive nature of zero-sum bargaining that does not necessarily affect
107
the efficiency of the final outcome. In fact, Shelling seems to argue that
there are social benefits to deception and that without some form of
108
deception, there would be no settlement in zero-sum negotiations.
109
With respect to non-zero-sum negotiation, Peters, along with others, seem
to concur that tactics such as all forms of deception interfere... with reaching efficient
110
results, and we deplore the inefficiency they introduce. The reason deception
leads to inefficiency in non-zero-sum negotiations is because such negotiations
involve more than just a distribution of resources. Intangible components such as
personal relationships, on-going business relationships, non-monetary concessions,
and future commitments are valued and important aspects of these types of
negotiations. Deception, if detected during or after the negotiation, tends to erode the
trust necessary to ensure that the respective parties fulfil their mutual obligations
under an agreement. If the agreement is built on unstable foundations, it will not last
and the negotiation will have potentially been considered a failure.
In summary, the success of a negotiation may hinge on whether deception
played a role and the extent to which such deception was perceived as harming or
benefiting the final outcome of the negotiation. This perception also depends on the
lawyers and parties view of certain theoretical perspectives about the nature of law,
107
Peters, above n 100, 30.
108
Peters, above n 100, 30 (citing Thomas Schelling, The Strategy of Conflict (1963) 22, 67 quoted by H
Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustment (1980) 159-60, n
17-19)
109
See Chapter 1, Section 1.7 (Definition of Key Terms) for the definition of non zero-sum
bargaining as used in this thesis.
110
Peters, above n 100, 32.

negotiation, ethics, and deceptive behaviour. The next section explores the
theoretical framework underlying some of the key areas of this thesis relative
to the research questions.
2.3 THEORETICAL FRAMEWORK
The purpose of this section is to discuss the theoretical constructs of various
disciplines relevant to the research questions of this thesis. As defined by Strauss and
Corbin, a theory incorporates a set of well-developed concepts related through
statements of relationship, which together constitute an integrated framework that can be
111
used to explain or predict phenomena. In general, the theoretical framework is
composed of the long-standing theoretical traditions, theoretical principles, and
112
relationships between the principles and traditions. By understanding the theoretical
framework, one can see the cross-disciplinary nature of the issues posed by the research
questions as well as identify potential solutions, where applicable.
2.3.1 Theories of Law
Law is central to the regulation of behaviour, whether of society or of
legal professionals. An understanding of the major theories of law is important
as the key areas of the research questions (rules, ethics, and negotiation)
intersect the two major theories of law, namely legal positivism and natural law.
Carvan identifies at least two major theories of law which directly affect the
creation, application, evolution, and interpretation of rules and codes of conduct affecting
legal professionals and the legal system. One theory, legal positivism, is the
111
Anselm Strauss and Juliet Corbin, Basics of qualitative research: Grounded theory procedures and
techniques (1990).
112
Gnter Krumme, Phases, stages and steps in geographic investigation (2000)
<http://faculty.washington.edu/krumme/guides/researchguide.html> at 9 August 2010; Calabrese, above
n 14, 25.

113
more dominant theory in use today within the adversarial system. Legal positivism
appears to reject the natural law theory and thus generally sees little value of any
114
religious or humane basis for laws. According to legal positivists, a law is a law
because it is a law and its validity depends on some clearly defined reason rather
115
than on any moral values. Under legal positivism, the test for whether a law is
valid is whether the law benefits the greater good of the people, a primarily utilitarian
116
perspective. For traditional legal positivists, such as John Austin, laws must derive
from positive sources such as the commanding sovereign who creates laws and
117
then imposes a sanction for violating such laws.
Modern legal positivists, such as Hart, see the legal system as consisting of
primary and secondary rules. Primary rules include rules that impose an obligation
[that may be] by social pressure supported by physical sanctions and those that are
118
necessary for a functioning society. Secondary rules appear to be demonstrative of
113
See generally, Carvan, above n 2, 5 (This seeking out of the truth by examination, cross-examination, and
re-examination is the foundation of the adversary system. In this country [Australia], we mostly use the
adversary system in legal proceedings. Other countries use different procedures to resolve conflict or to find
the truth.) This is ironic because many would argue that it is the adversarial model which not only perpetuates
deception but does so in a way that also keeps many, including the stakeholders of the system, from finding
the truth. See also Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789)
(Bentham is considered one of the first utilitarian philosophers to see a conceptual difference between law
and morality).
114
Carvan, above n 2, 4; See also Jonathan Crowe, Legal Theory (2009) 31-32 (legal positivists claim that
morality plays no necessary role in determining legal validity.the question of what the law is can be logically
separated from the question of what the law ought to beoften called the separation thesis. (emphasis in the
original)
115
See, eg, Tony Honor, The Dependence of Morality on Law (1993) 13 Oxford Journal of Legal Studies 1,
1-17 (arguing that law will sometimes make morally binding what was not binding apart from its being so
required); See also Tony Honor, The Secessary Connection Between Law and Morality (2008) , 2
(discussing the connection between positivism and morality); Crowe, above n 114,
30 ( whether a law is valid necessarily depends on certain socially recognised facts and events,
such as whether it has been issued in the appropriate form by a recognised legal authority.).
116
Carvan, above n 2, 4; Crowe, above n 114, 30.
117
Carvan, above n 2, 4; Crowe, above n 114, 30-31 (discussing the distinction between exclusive
positivism, as argued by Joseph Raz and inclusive legal positivism); See also Jospeh Raz, The
Authority of Law (1979) 45-52.
118
Carvan, above n 2, 5 (discussing Hart and listing prohibition of murder and theft as examples of
primary rules.). See also H L A Hart, The Concept of Law (2nd ed, 1994) 250-254.

an advanced legal system because secondary rules complement and support primary
rules by provid [ing] a system of change in the rules that govern that society as it
develops as well as a viable system of resolving disputes. Common law countries, such
as the United States and Australia, may be considered advanced legal systems by this
definition since judicial decisions, for example, provide a mechanism to resolve disputes
as well as a means of changing and evolving law as the country develops.
Legal positivism appears to be primarily a system of rules and codes of
conduct created by humankind that punishes those who violate them rather than
a system of law derived from higher principles or with the intent of rewarding and
encouraging good behaviours. This is not to say that legal positivism does not
encourage good behaviour; however it attempts to or hopes to encourage good
behaviour through a system of punishing those who engage in behaviour that is
deemed unacceptable or violating established laws and codes of conduct as
defined by society or those in positions of political power.
In contrast to legal positivism, the natural law theory recognizes the existence of
119
a natural or divine reason for the existence of laws. Natural law can be defined as: 1)
120
universally applicable; 2) unchangeable; and 3) superior law to human-made laws.
The primary difference between legal positivists and natural law theorists is that legal
positivists would require persons to obey a law simply because it is considered law and
explicitly codified as such. In contrast, natural law theorists believe that a law is valid
when it is based on natural law principles and reflects the principles by which we should
121
live. Natural law theorists argue that traditional
119
Carvan, above n 2, 4.
120
Ibid.
121
Ibid (emphasis added).

sources of law should be supplemented by an additional moral test. According to
natural law theorists, legal validity is determined by a two-pronged test: 1) a source
based test that looks at explicit, codified rules; and 2) a moral component that looks
122
at the moral purpose of the law. Natural law generally reflects and takes into
account moral values to a greater degree than legal positivism. For example, natural
law might state that it is immoral to kill someone and oppose the death penalty.
However, legal postivism in many countries allows the judicial system (state) to
condemn a man to death and to carry out the death penalty as a matter of law. This
creates a tension between natural law theorists and legal positivists about how
society ought to live and how law can be codified to benefit citizens.
In the context of this thesis, understanding the distinction between these two
theories of law is paramount if one is to gain insight into the complex issues of the
nature of deception in negotiation by legal professionals. Lawyers are meant to
uphold the codified law in the positivist sense such that by the professional ethics
codes, lawyers are generally forbidden to lie in the course of their professional
duties. These duties may also apply to their private dealings to the extent that they
impact the nature of the legal profession. At the same time, lawyers daily interact
with and serve the public, whose views on acceptable deception in negotiation cross
the boundaries between codified law and natural law principles. The question arises
as to whether negotiations conducted by lawyers should be subject to strict positivist
laws or whether lawyers ought to be able to use some forms of deception because
such deception is natural to societys expectations of bargaining behaviour. A related
enquiry is the extent to which either positivist rules (laws and ethics codes) or natural
122
Crowe, above n 114, 10, 30 (discussing the validity of law according to legal positivists
and natural law theorists).

principles (values, morals) provide the most successful means of dealing
with the issues posed by the research questions.
An understanding of the tension between these two theories of law is also
important because ethics is a function of natural law and what is deemed ethical
or considered an ethical course of action (i.e., what one ought to do in a given
situation) sometimes clashes with what is considered a legal or non-legal course
of action in the life of a legal practitioner, particularly in the case of negotiation, a
process that intersects both law and ethics. To the extent that there is a marked
difference between negotiation behaviour that is legally acceptable versus that
which is ethically permissible, the legal practitioner will likely face an ethical
123
dilemma, especially if his/her own personal ethics is also at odds with the
jurisdictions legal ethics and the prevailing bargaining ethics.
2.3.2 Theories of Ethics
As previously discussed, ethics plays an important role in establishing
and measuring acceptable behaviour. The purpose of this section is to
present some divergent views on general societal ethics as well as legal
ethics. This section also discusses the distinction between ethics and morals.
In the context of this thesis, understanding these divergent yet co-existing
views will help explain why the issue of deception in negotiation is complex
and the impact of various influences on negotiation behaviour.
123
See Chapter 1, Section 1.7 (Definition of Key Terms) for a definition of ethics and morals
as used in this thesis. In the context of this thesis, an ethical dilemma is one where the legal
practitioner is unsure of proper course of action in terms of what is right or wrong, either by
social standards or ones own moral (individual) standards of right and wrong.

2.3.2.1 Introduction
At the start, ethics needs to be distinguished from morals and
from legal ethics, though they are sometimes used interchangeably.
Ethics includes the various theories and schools of thought that attempt
to describe the kind of moral action, conduct, motive or character that a society
124
ought to embody and how society ought to behave. In addition, ethics is
considered by some as even more stringent than custom, defined as the need to
conform to the behavioural patterns of a community, whether personal or
125
professional. For example, in the context of this study, where ethics states
that lawyers must be honest and maintain candour in their professional capacity,
the custom of negotiation in personal injury cases may tacitly require that
126
personal injury lawyers use some forms of deception.
Legal ethics is a special subset of ethics and may be defined as [u]sages and
customs among members of the legal profession, involving their moral and
127
professional duties towards one another, towards clients, and toward the courts.
In contrast to ethics or legal ethics, morals or morality is the law of
128
conscience. Morals are generally considered a personal standard of what is right or
wrong, perhaps based on an aggregate view of the ethical rules and principles.
124
Blacks Law Dictionary, above n 28, 553; See also Lewicki et al, above n 25, 236; Bobette Wolski,
Legal Skills: A Practical Guide for Students (2006) 23.
125
126
See, eg, Rob Davis , Negotiating Personal Injury Cases: A Survey of the Attitudes and Beliefs of
Personal Injury Lawyers (1994) 68 Australian Law Journal 734.
127
Blacks Law Dictionary, above n 28, 894. See also Bagaric and Dimopolous, above n 43, 3; Wetlaufer,
above n 31, 1235-1236; Wolski, above n 124, 23 (referring to this as rules which encompass the ethical
standards of the profession that is, these are the standards for determining what is right or wrong in a
particular situation.).
128
Blacks Law Dictionary, above n 28, 1008 (Moral law). See also Wolski, above n 124, 23 (defining
morals as individual and personal beliefs about what is right and wrong (citing Roy J Lewicki, Bruce Barry,
David M Saunders and John W Minton, Essentials of Segotiation (2003) 236).
10
More importantly, morals are cognizable and enforceable only by the conscience
129
or by the... [moral sense] of right conduct, as distinguished from positive law.
Morality is sometimes a product of communal life resulting in a personal
sense of what is right and wrong as developed during the socialization
process, such as through the family, community life, and the environment in
130
which one lives. The result is a personal conscience as a by-product of the
ideals we aspire to, the beliefs to which we attach particular significance, the
131
essence of our desiresignpost giving meaning to our lives.
Morality, unlike law, is concerned with fairness and choice such that
132
being legally right is not the same thing as being morally right. Morals do not
require strict or logical proof and are based simply on a sense, a belief, or even
133
a conviction of what is right or wrong. Morals may have a randomness that
the law tries to correct by imposing a societal standard of what constitutes
appropriate and acceptable conduct so as to maintain some sense of civil
order. Of course, each one of these business customs, legal ethics, and
personal morals can be opposing forces during a negotiation.
2.3.2.2 Ethics, Legal Ethics, and Morality Distinguished In
addition to differences in definition between ethics, legal ethics and
morality, some argue that ethics is more stringent than law, law less stringent than
134
ethics. Whereas law must deal with such external factors as problems of
ascertaining the facts of the past events, motives of the person charged, possibility of
129
Blacks Law Dictionary, above n 28, 1008 (Moral, part 2).
130
Hugh Mackay, Right & Wrong (2004) 26.
131
Mackay, above n 130, 18.
132
Mackay, above n 130, 37.
133
Note: Whether morals can be proved and thus have an underlying logical proof is debatable.
134

error, data conflicts, and the transaction costs of trying to do justice, ethics
sometimes transcends such limitations. The legal process must overlook or allow for
certain deceits that either have little or no effect on the outcome of the case or are
135
difficult or impossible to prove. For this reason, it appears that legal ethics is
especially formulated to work within the limitations of the law, thus the perception
136
that the legal professionals code of ethics is not really ethics. For example, law
and legal ethics is concerned with deception as it relates to what might be material
137
facts whereas societal ethics or personal morals does not make this distinction.
In brief, the differences between legal ethics, societal ethics, and
morality, whether actual or perceived, could potentially create conflicts of
perception with regards to the use of deceptive tactics in negotiation.
Ethics, in particular, creates a layer of complexity when dealing with
attempts to regulate deceptive behaviour, especially where such ethical
norms collide with the legal ethics of the legal profession.
2.3.2.3 Overview of Dominant Theories of Ethics
There are four predominant ethical philosophies from a societys view of how one
138
ought to behave. First is end-result ethics, which argues that one should pursue a
139
course of action that gets the greatest return on investment. End-result ethics is
135
136
137
See, eg, Spector v. Mermelstein, 361 F.Supp. 30, 40 (S.D.N.Y. 1972), modified on other grounds,
485 F. 2d 474 (2d Cir. 1973) (defining material facts as those which, if known to the client,
might well have caused him, acting as a reasonable man, to alter his proposed course of
conduct.) See also Lerman, above n 60, 686 (referring to this as the materiality standard).
138
Note: These could be debated. See, eg, Gordon Graham, Eight Theories of Ethics (2004) 126-161
(discussing utilitarianism in light of at least eight theories of ethics, from Immanuel Kants categorical
imperative (lying is not appropriate under any circumstances) to act utilitarianism, rule utilitarianism,
existentialism, hedonism, and consequentialism. In addition, a distinction is made between ethical
philosophies as understood in general by society and noted philosophers (societal ethics) and ethical
models as proposed by negotiators (bargaining ethics).
139
Lewicki et al, above n 25, 236-237.

based on determining the rightness of an action by considering the
consequences of the action. As such, end-result ethics can be regarded as
140
utilitarianism, which is also a consequentialist doctrine. End-result ethics,
therefore, judges the consequences of the action, rather than the will or intention
of the actor behind the action (Kantianism or duty ethics) or the authenticity or
141
good faith with which the action is performed (Existentialism). In the context of
this thesis, legal positivism is generally utilitarianism or end-result ethics in action.
A second philosophy, duty ethics, states that the best course of action is one
142
based on the duty to obey or uphold certain rules and principles, such as the law.
This means that ones actions should be guided by primary moral principles, or
oughts and that the ultimate good is a life of virtue (acting on principles) rather than
143
pleasure. In the context of this thesis, legal professionals are considered duty
bound to obey the legal ethics codes of their jurisdiction, even in negotiations.
A third ethical philosophy is social contract ethics, in which the best
course of action is one in line with established customs, norms, values, and
144
strategy of an organization or community, such as codes of ethics, body
corporate laws, and business industry customs and usage.
A fourth approach is personalistic ethics. Under this approach, the
right course of action is based on ones personal conscience or
145
convictions. As such, personalistic ethics is most closely tied with morals.
140
Graham, above n 138, 139.
141
Graham, above n 138, 137-138; Lewicki et al, above n 25, 241.
142
Lewicki et al, above n 25, 236-237. Immanuel Kant is considered the founder of this philosophy,
sometimes referred to as duty for dutys sake.
143
144
Lewicki et al, above n 25, 236-237.
145
Ibid.

In summary, the dominant theories of ethics discussed above
influence how society believes it ought to behave. The next section
discusses theories of how the legal profession, through professional ethics
codes, believes lawyers ought to behave and the ethics of eliciting such
behaviours or punishing behaviour that violates these rules.
2.3.3 Theories of Legal Ethics

146
Ethics is a fundamental guiding force of the legal profession. The
147
legal ethics rules shape not only the lawyers behaviour but define the
profession and its values. Therefore, the selection and enforcement of a

particular legal ethics model is likely to drive corresponding behaviour.
Legal ethics can be understood as possibly consisting of two types of codes
and two types of morality. Once again, this is the intersection between legal
positivism and natural law principles. The two types of codes include disciplinary
codes and aspirational codes. Disciplinary codes are written rules identifying a lowest
148
common denominator of conduct below which offenders are punished.
Disciplinary codes are technically rules made by the law societies or law associations.
They generally identify the lowest common denominator of conduct by which lawyers
should abide and conduct which is unacceptable. In most cases, disciplinary codes are
reactive and punitive, not preventative and remedial. The rules could also be
146
See Chapter 1, Section 1.7 (Definition of Key Terms) for a definition of ethics and morals as used in
this thesis. See also Richards, above n 28, 373; Lowenthal, above n 28, 413.
147
Note: Legal ethics here incorporates a broad definition to include not just the legal ethics rules but also to
mean leading our lives as lawyers, making decisions about our clients, our opponents, ourselves and our
families, searching to be good lawyers as well as good people (citing Carrie Menkel-Meadow, Portia
Redux: Another Look at Gender, Feminism, and Legal Ethics in Stephen Parker and Charles Sampford (eds)
Legal Ethics and Legal Practice: Contemporary Issues (1995) 55.
148
Charles Samford with Christine Parker, Legal Regulation, Ethical Standard Setting, and Institutional
Design in Stephen Parker and Charles Sampford (eds) Legal Ethics and Legal Practice: Contemporary
Issues (1995) 14; Ruth Fleet Thurman, Chipping Away at Lawyer Veracity: The ABAs Turn Toward Situation
Ethics in Negotiations (1990) Journal of Dispute Resolution 103.

considered self-interested as they are created and enforced by the professional
associations, not by an external and disinterested group. So long as a legal
professional does not violate the rule, s/he is free to do as s/he wishes.
Aspirational codes, on the other hand, are the highest standards to which all
should strive. Aspirational codes go beyond providing guidance on sanctions for
unacceptable behaviour and also prescribe higher and preferred standards of conduct
expected of lawyers, conduct that is rooted in core values or a higher calling and
mission. In the context of this thesis, the type of ethics code used will determine the
extent to which behaviour can be specifically monitored, regulated, and enforced.
Two primary types of morality underpin or intersect the disciplinary and
aspirational codes of ethics discussed above. The two types of morality are positive
morality and critical morality. Positive morality is what many consider to be the
149
appropriate standard of conduct for lawyers. It is rooted in the legal positivism
argument that drives most legal systems, especially common law systems. Positive
morality, or the moral customs actually practiced by a given society are codified in
the disciplinary codes of the legal profession. According to Sampford, positive
morality of legal ethics today seems to reinforce the ideas of the moral majority in
law and thus denies the validity of claims that the way things are [might] not
150
necessarily [be] the way they ought to be. This denial of other, more appropriate
standards of behaviour by lawyers is a principal criticism of this approach. Rhode, for
149
Formulated by John Austin (1790-1859), legal positivism argues that the existence and content of law
depends on social facts and not on its merits. The positivist thesis does not say that law's merits are
unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether
laws or legal systems exist. According to positivism, law is a matter of what has been posited (ordered,
decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is
a social construction. (The Stanford Encyclopedia of Philosophy, Legal Positivism (2003)
<http://plato.stanford.edu/entries/legal-positivism/> at 9 August 2010.
150
Samford and Parker, above n 148, 16.

example, criticises the bar and the profession for failing to see its own
problems and taking steps to correct the current problems plaguing the
151
profession. This is caused, in part, by strict adherence to standards of
behaviour as codified in the disciplinary codes, which might be out of step with
the evolution of the profession and its role in society.
Critical morality, on the other hand, is a model where individuals can debate,
discuss, and criticize majority views, internalizing their own values and acting on
themallowing lawyers to question the way things are and to develop their ideas of
152
how things ought to be. Values are central to the discussion of critical morality.
The values important to critical morality are those which the individual finds
compelling, not the values imposed by rules or a moral majority with a legalistic
153
view. In this sense, one talks about legal ethics in the true context of ethics, not
law. At the same time, critical morality does not attempt to completely undermine
prevailing legal ethics principles. According to Sampford, critical morality can be
applied to even the prevailing positive morality with an eye to applying a shared
154
morality that lawyers can use to guide their actions. In the context of this thesis, a
particular provision of the legal ethics code may be driven by positive morality, such
as the rules on client confidences. The provisions are usually designated by must or
shall statements that appear to denote a required mandate. A lawyer would not be
able to question, or be critical of, these provisions and must act in accordance with
the provision (positive morality). However, another provision of the legal ethics code
151
See, eg, Deborah L Rhode, In the Interests of Justice: Reforming the Legal Profession (2000) 200-
208.
152
Samford and Parker, above n 148, 16.
153
Ibid.
154
Ibid.

may allow the lawyer to use professional discretion in carrying out their duties.
These provisions are usually identified as should or may statements. The
lawyer may question the ethics code and act outside of it, where necessary
(critical morality). The ethical dilemmas and tensions arise when the provisions of
the legal ethics codes conflict as to what a lawyer must do in a professional
capacity that goes against what a lawyer believes is the right course of action
based on personal ethics or the prevailing ethics of the community or society at
large. It is at these points where a lawyer who has developed critical morality may
be able to better navigate ethical dilemmas and to make better judgments than
one who feels strictly bound by the letter of the law under positive morality.
These notions of codes and morality underpin models of legal ethics. In
155
addition to theories of social ethics, theories of legal ethics exist to explain the
type of ethical decision-making lawyers might engage in during the course of
practice. As will be discussed further in Chapters 3, 4, and 5, the legal ethics codes
define how lawyers ought to behave. Legal ethics codes may differ from theories of
social ethics and are generally constructed on a prevailing legal ethics theory. The
extent to which lawyers might use deception in negotiation may depend on the legal
ethics theory being used by a given jurisdiction such that where there is explicit
guidance on permissible tactics in negotiation, lawyers are expected to follow such
guidance as opposed to a legal ethics code where no such guidance exists.
In the context of this thesis, understanding the express and implicit language of
the legal ethics codes combined with an understanding of the major legal ethics
theories is crucial to the analysis of the third research question, namely whether legal
155
See Chapter 2, Section 2.3.2 (Overview of Dominant Theories of Ethics) for a
discussion on this topic.

ethics codes can and do successfully guide the negotiation behaviour of
lawyers. The next section discusses the four major legal ethics theories
beginning with the prevailing adversarial legal ethics model.
The primary and prevailing legal ethics theory, described by Parker and
156
Evans as the Adversarial Advocate model, is also referred to by many as the
157
standard conception of lawyer ethics. Under the adversarial advocate approach to
legal ethics, the lawyers role is governed by the adversarial legal process which
requires that the lawyers primary duty is to zealous advocacy on behalf of his/her
158
client within the bounds of the law. This approach is characterised by ensuring
159
client autonomy, partisanship, loyalty to the client, and non-accountability. Luban
160
describes the standard conception of the lawyers role under the adversary model
as consisting of: 1) a role obligation (the principle of partisanship) that identifies
professionalism with extreme partisan zeal on behalf of the client and 2) the
principle of nonaccountability, which insists that the lawyer bears no moral
161
responsibility for the clients goals or the means used to attain them.
The role obligation is based on the theory of role morality, as opposed to
universal morality or even general social morality. Role morality under Lubans
principle of partisanship means that while there may be universal moral duties,
156
Christine Parker and Adrian Evans, Inside Lawyers Ethics (2007) 14.
157
Parker and Evans, above n 156, 14; David Luban, Lawyers and Justice: An Ethical Study (1988).
158
Parker and Evans, above n 156, 21-23. Parker and Evans call this approach adversarial advocate or
the traditional conception. A similar term, standard conception, is used by David Luban in referring to
Gerald Postemas article in New York University Law Review. See Luban, above n 157; Thurman, above n
148, 103.
159
Parker and Evans, above n 156, 21-23; Luban, above n 157.
160
Gerald J Postema, Moral Responsibility in Professional Ethics (1980) Sew York University Law Review
55, 73.
161
Luban, above n 157.; Thurman, above n 148, 103; Carrie Menkel-Meadow, Ethics in Alternative Dispute
Resolution: New Issues, No Answers from the Adversary Conception of Lawyers Responsibilities (1997) 38
South Texas Law Review 407, 429 (discussing the values of zeal, client loyalty, partisanship, and non-
accountability that currently dominate the model rules of practice.

special duties go with various social roles or stations in life which may allow individuals in
these particular social roles to do things that seem immoral but are necessary in that
162
role in society. In some ways, the conduct occurring under role morality is said to be
excused because of the special role even though social ethics or general morality might
vehemently condemn such conduct. With regards to lawyers lying in negotiation, the
principle of partisanship could explain how the use of deception in negotiation is not only
allowed but also seen as expected and ethical. Partisanship naturally invites an intense
competition against any person or interest not aligned with those of the client or the
lawyers pursuit of zealous advocacy on behalf of his or her client. Competition under the
guise of zealous advocacy might cause certain behaviours to be more pronounced than
others, such as those common to distributive bargaining, including bluffing, puffing,
deception, and intense focus on winning. Under the adversarial ethics model, lawyers
might not even recognise certain deceptive behaviour in daily negotiations as unethical.
163 164
On the contrary, as White in his seminal US article, Lerman in her US anecdotal
165
study, and Wetlaufer in his informal US study clearly demonstrate, lawyers appear to
routinely justify deceptive behaviour as permissible and within the bounds of legal ethics
codes. In addition, deceptive behaviour is not seen as deception at all but simply a part of
a lawyers role as zealous advocates for their clients or as adopting a defensive posture
because of the actions of opposing counsel. Perhaps the adversarial approach to legal
162
Luban, above n 157. Luban refers to general morality as common morality, a morality common to all
people.
163
White, above n 60, 929.
164
165

ethics is best summarised by the comments of a chief executive partner of Clayton
Utz, a leading law firm in Australia:
Moral judgments have no place in the advice a lawyer

gives to a client, according to the chief executive partner
of Clayton UtzHe said: The clients are entitled
obviously to avail themselves of the full protection of the
law and the lawyers are there to advance their clients
interest subject to the constraints of their professional
duties and, in particular, their duties to the courts. But if
they operate within those constraints then they are acting
appropriately. He said a lawyer might advise on the
appropriateness of different strategies, but it was wrong
for a lawyer to make moral judgments. We dont take a
moral stance and its not up to us, as advocates for a
client, to take a moral stance. Ultimately that comes to a
166
decision by the client, not the lawyer.
A second legal ethics approach is described by Parker and Evans as the
167
responsible lawyer model. Under this model, the lawyers duty as officer of the
court and responsibility to pursue justice and maintain the integrity of the legal system
overrides his duty to the client though the lawyer still advocates for his/her clients
168
interests. Unlike the adversarial model which seems to be client-centred, the
responsible lawyer ethic is public interest-centred without fully compromising client
interests. The responsible lawyer sees his/her role and the practice of law as a
public profession in which lawyers have a mediating function, between the client
169
and the law. While responsible lawyers might put the duties to the legal system
first, they, like adversarial advocates, do not consider personal morals relevant to their
roles. Like the adversarial advocate, the responsible lawyer will look to the ethics
166
Simons, above n 13.
167
Parker and Evans, above n 156, 24-27.
168
Parker and Evans, above n 156, 24.
169
Parker and Evans, above n 156, 26 (citing Robert Gordon, Corporate Law Practice as a Public
Calling (1990) 49 Maryland Law Review 255).

inherent in their role as officer of the court and in the law and attempt to pursue justice
170
according to the law, no more and no less. However, unlike the adversarial advocate,
the responsible lawyers primary focus is not the clients interests but the public interest
and how the client can achieve his/her goals without violating the public interest and
compromising the integrity of the legal system. In essence, the responsible lawyer puts
171
the profession first rather than the client, a position advocated by many legal scholars.
In a best case scenario, the responsible lawyer acts as a go between to help the
individual and the state achieve a more harmonious balance in terms of the goals each
172
strives to achieve in the legal system. They accomplish this by creatively combin[ing]
technical skill, a sense of social and legal responsibility and the vigorous pursuit of
173
clients interests. In the context of this thesis, presumably a lawyer acting under the
responsible lawyer model would not use deception given his/her strict adherence to the
integrity of the profession and maintaining the public trust, something which would be
compromised through the use of deception. The question arises as to what might happen
when the duties to the profession collide with the interests of justice or the lawyers own
moral code.
A more extreme version of the responsible lawyer model might be what
174
DAmato and Eberle call the socialist model of legal ethics. The socialist model
invokes the power of the state above client interests. Under the socialist model, the
170
171
Michael Davis, Professionalism Means Putting Your Profession First (1988-1989) 2 Georgetown Journal
of Legal Ethics 342.
172
173
174
Anthony DAmato and Edward J Eberle, Three Models of Legal Ethics (1983) 27 Saint Louis
University Law Journal 762, 770-772.

175
lawyers duty as an agent of the state supersedes his or her duty to client. While
the lawyer does consider the clients interests worthy, these goals are only worthy to
the extent that they are consistent with the states goals. Clients are expected to
conform to the law and lawyers are expected to assist clients to rehabilitate
themselves from deviations to the contrary. In the socialist system of legal ethics,
176
there is no division of duty between the judge, prosecutor, and defence counsel.
A third legal ethics approach described by Parker and Evans is the moral
177
activist model, a term originally coined by Luban. Moral activism is in stark
contrast to both the adversarial advocate and responsible lawyer approaches. Moral
activism combines mainstream consequentialist theory and a deontological theory
178
of ethics as applied to legal practice. Consequentialist theory is based on the
notion that all actions have consequences. A deontological theory of ethics means
that there is a moral obligation to carry out some acts regardless of how they might
179
impact human happiness or serve the common good. As described by Luban, the
moral activist understands that he/she cannot hide behind the cloak of the lawyers
traditional role-morality principles of partisanship and non-accountability. Luban
describes moral activism as follows:
Moral activisminvolves law reform explicitly putting ones

phronesis, ones savvy, to work for the common weal
175
DAmato and Eberle, above n 174, 770. This model is most prevalent in socialist countries such as China
and Russia, where the interests of the state appear to supersede all other interests.
176
DAmato and Eberle, above n 174, 770 (citing Monroe H Freedman, Lawyers Ethics in an
Adversary System (1975) 2.
177
See generally Luban, above n 157, xxii (discussing the morally activist lawyer and moral activism
approach to legal ethics).
178
Parker and Evans, above n 156, 23, 28; See also Luban, above n 157, xxii (discussing the morally activist
lawyer and moral activism approach to legal ethics). Moral activism may also be referred to as public interest
lawyering.
179
DAmato and Eberle, above n 174, 772-773 (discussing deontological ethics and its leading founder,
Immanuel Kant).

180
and client counselling. The morally activist lawyer shares
and aims to share with her client responsibility for the ends she
is promoting in her representation; she also cares more about
the means used than the bare fact that they are legal. As a
result, the moral activist will challenge her client if the
representation seems to her morally unworthy; she may cajole
or negotiate with the client to change the ends or means; she
may find herself compelled to initiate action that the client will
view as betrayal; and she will not fear to quit. She will have
none of the principle of nonaccountability, and she sees severe
181
limitations on what partisanship permits.
Lawyers operating under a moral activist ethic see themselves as active
182
players of the opportunity in the law such that they feel responsible for doing
justice even if that involves changing or challenging the law and, from time to time,
183
its practitioners. This is particularly the case where moral activists feel the clients
184
cause is just and such activism is warranted. The advantages of the moral activist
approach include the possibility that lawyers are engaged in work for social good such
as in legal aid or pro bono work as well as working with poor clients. This approach
also allows the lawyer to play an active role in their clients representation rather than
being just a hired hand. The disadvantages consist of situations where lawyers may
subordinate the interests of their clients to larger causes or to deny representation to
people and causes which do not reform the law or causes that the lawyer deems
180
See generally Luban, above n 157, 173.
181
Luban, above n 157, xxii.
182
Luban, above n 157, xxii (discussing a term coined by Louis Brandeis who argued that the opportunity in
the law consisted in acting as a peoples lawyer who would self-consciously promote unrepresented
interests, both public and private, with the same devotion and intelligence that corporation lawyers offer their
clients. Ibid at xxiii.); See also Louis D Brandeis, The Opportunity in the Law (1905) 39 American Law
Review 555, 559.
183
Luban, above n 157, xxii.
184

unworthy. In that vein, moral activism may work against the traditional approach of
185
allowing each client their day in court, metaphorically speaking.
A fourth legal ethics approach described by Parker and Evans is the ethics of
186
care model, or relational lawyering approach. Under this approach, personal and
relational ethics take precedence over rights-oriented approaches and social,

187
professional, or political gains. The ethics of care approach argues for the
following:
Whereas the ethics of justice is founded on the idea that

everyone should be treated equally, the ethics of care
requires that no one should be hurt. Whereas the ethic
of justice assumes that one can resolve moral dilemmas
by abstract and universalistic moral reasoning, the ethic
of care requires due attention to context and the specific
188
circumstances of each moral dilemma.
This approach appears to argue for a feminine-oriented ethics approach with
the assumption that the current standard conception ethics model is more male-
oriented. The ethics of care model is primarily based on the works of Carol Gilligan
who believed that the current rights-oriented moral reasoning approach was developed
primarily from the male point of view rather than the more female-oriented care-based
189
ethics views. While controversial, the ethics of care approach has been adopted as
an alternative approach to legal practice ethics primarily because of its contextual
style as well as the attempt to incorporate the moral, emotional, and relational
185
Parker and Evans, above n 156, 30-31; Luban, above n 157, 174.
186
Parker and Evans, above n 156, 23, 31.
187
Ibid.
188
Caroline Maughan and Julian Webb, Lawyering Skills and the Legal Process (1995) 36.
189
Parker and Evans, above n 156, 23, 31 (citing Carol Gilligan, In a Different Voice: Psychological Theory
and Womens Development (1982)).

190
dimensions of a problem into the legal solution. The controversial nature of
this approach lies in its strength as well as its weakness; a contextual style of
ethics which allows for situation-based solutions but creates difficulty in limiting
the possibility of developing a model of legal ethics that can be replicated and
consistently used in the context of legal ethics issues. This contextual approach
191
can be likened to what some scholars call situation ethics, described as an
ethic which holds that both moral and legal rules are only relatively obliging and
192
valid. Their claim upon us depends extrinsically upon variable circumstances.
The ethics of care has influenced legal practice in several ways: 1) by
encouraging lawyers to use a more holistic approach to resolving clients problems;
2) by encouraging a more participatory approach to lawyering through greater
dialogue between lawyer and client as well as more in-depth dialogue beyond the
ordinary legal issue that the client is facing; and 3) by allowing lawyers and clients to
see each other as ordinary people with relationships worthy of preserving and thus
193
encouraging more non-adversarial approaches to resolving disputes.
While the ethics of care approach may seem beneficial, justifying the
incorporation of a personal ethic into the legal ethics dilemma would seem
problematic because personal ethics vary so greatly and because there might be a
190
Thomas L Shaffer, On Being a Christian and a Lawyer: Law for the Innocent (1981); Thomas L Shaffer
and Robert F Cochran, Lawyers, Clients and Moral Responsibility (1994); Parker and Evans, above n 156,
32.
191
William H Simon, The Practice of Justice: A Theory of Lawyer Ethics (1998) 138; Thurman, above n 148,
103.
192
Joseph Fletcher, Situation Ethics, Law and Watergate (1975-1976) 6 Cumberland Law Review 35,
36. See also Simon, above n 191, 138 (discussing the nature of contextual judgement of
lawyers and proposing a lawyer ethic that is more contextual in nature and based on the
justice-serving goals of the legal system rather than the current rules-based approach or
personal morality). Note that while Parker and Evans would include personal morality as a
guide post in the ethics of care model, it appears that Simon would argue for going beyond
personal morals to focus on the overarching intentions of the justice system.
193

danger of losing the overarching societal values that appear to be embodied
into a legal justice system. However, this is the embodiment of the ethics of
care a greater concern for the clients deep-seated interests, the network of
relationships in which the client is engaged, and a greater interest in personal
194
change (of the client) rather than social change.
In addition to the primary legal ethics models discussed above, there have
been other suggestions for adopting alternative legal ethics models, including the
deontological model based on Immanuel Kants theories as proposed by DAmato
195
and Eberle as well as a contextual ethics model based on situation ethics as
196
proposed by W D Ross. Finally, William H Simon has proposed a lawyer ethics
model based on contextualism as well as a lawyer disciplinary model based on the
197
torts compensation system. To date these have not had significant impact on the
current legal ethics models used and thus are not discussed in detail here.
In conclusion, while there appears to be some general consensus that the
adversarial ethics model is the most predominant model in use today, the other legal
ethics models may also be used in various degrees by various lawyers. To some extent,
this is expected of a self-regulated profession where legal jurisdictions are allowed to
adopt certain jurisdiction-specific ethics codes and where lawyers often act as agents for
clients. At the same time, the use of multiple and potentially conflicting
194
195
DAmato and Eberle, above n 174, 772-773
196
See generally DAmato and Eberle, above n 174, 772-774. See also W D Ross, The Right and the Good
(1930) (arguing for right action rather than good action such that [a]n act is not right because it, being one
thing, produces good results different from itself; it is right because it is itself the production of a certain state
of affairs. Such production is right in itself, apart from any consequence.); W D Ross, The Foundations of
Ethics (1939).
197
Simon, above n 191. Simons contextualist approach to legal ethics theory is treated briefly Chapter
7.

legal ethics model of a given jurisdiction is highly problematic for a
profession as a whole.
In the context of this thesis and the use of deception in negotiation, it means that
198
there is greater potential for variability in lawyer conduct depending on the legal ethics
theory used such that some lawyers may justify deceptive conduct and get away with it
while others may be unduly punished for acting in a similar manner. The potential
inconsistency in behaviour and enforcement under variable ethics codes is likely to only
199
add to the publics ambivalence towards the legal profession. Given these concerns,
care must be taken in adopting a specific model because ethics is precarious if it is
200
dependent on a contingent outcome of an entirely selfish consequentialist calculus.
This is even more so when lawyers negotiate and are part of a negotiation process that
has its own history and theories of bargaining ethics.
2.3.4 Theories of 4egotiation and 4egotiation Process
The preceding section focused on the various theories of legal ethics and
how they may influence a lawyers behaviour in the course of practice. The focus of
201
this section is on the theories of negotiation and the negotiation process. As the
central focus of this thesis is on the use of deception in negotiation, it is important to
understand the underlying tenets of the negotiation process and how negotiation
theory and principles affect a lawyers ability to negotiate while still adhering to the
legal ethics codes of the profession. This section discusses four primary negotiation
198
See Chapter 7, Section 7.7 (Implementing the Proposed Policy Reform Proposals) for a discussion on
the impact of variability of conduct on the lawyer and the profession.
199
See Chapter 6, Section 6.5 (Consumer Studies of the Legal Profession are the Sting in the Tail) for a
discussion of consumer studies and public perceptions of lawyers and the legal profession.
200
Stephen Parker and Charles Sampford (eds) Legal Ethics and Legal Practice: Contemporary Issues
(1995) 55; See also C A J Coady and Charles J G Sampford (eds), Business, Ethics, and the Law (1993)
6.
201
See Chapter 1, Section 1.7 (Definition of Key Terms) for a definition of negotiation as used in this thesis.

theories starting with the communitarian bargaining theory. This is followed by a
section on theories of negotiation ethics so as to distinguish between ethics used in
the legal context as compared with ethics proposed for the negotiation process.
A legal bargaining theory, called the communitarian bargaining theory
202 203
emerged in the late 1970s with the meta argument as a central mechanism.
The communitarian bargaining theory has been described as perhaps the most
204
important development in the legal bargaining literature in the last twenty years.
Communitarian bargaining theory is relevant to this thesis because it helps
establish the distinction between negotiation for the purpose of a social good (non-
legal) and negotiation for the purpose of resolving an individuals claim to something
(legal). Scholars such as Professor Condlin describe the communitarian approach to
legal bargaining as grounded on methodological claims about the importance of
tradition and social context for moral and political reasoning, ontological or
metaphysical claims about the social nature of the self and normative claims about
205
the value of community. Further, a communitarian approach is characterized
principally by a commitment to resolving disputes from the perspective of what is
202
Robert J Condlin, Bargaining with a Hugger: The Weaknesses and Limitations of a Communitarian
Conception of Legal Dispute Bargaining, Or Why Cant All Just Get Along (March 25, 2006) 1, n 3. bpress
Legal Series. Working Paper 1194. <http://law.bepress.com/expresso/eps/1194> at 9 August 2010 (crediting
the work of Gerald R. Williams with the introduction of the communitarian theory of bargaining in legal
literature with the publication of his book Legal Negotiation and Settlement. See generally Gerald R Williams,
Legal Segotiation and Settlement (1983). Based on survey research conducted in the late 1970s, Williams
argued that the most effective [legal] negotiators are characterized by positive social traits and attitudes and
by the use of more open, cooperative and friendly negotiating strategies. (See eg, Gerald R Williams et al.,
Effectiveness in Legal Negotiation in Gordon Bermant et al. (eds) Psychology and the Law (1976) 113.
203
Robert J Condlin, Every Day and in Every Way, We are All Becoming Meta and Meta: Or How
Communitarian Bargaining Theory Conquered the World (of Bargaining Theory) (2008) 23 Ohio State
Journal on Dispute Resolution 2.
204
Condlin, above n 203, 2, n 9 (citing Carrie Menkel-Meadow, Why Hasnt the World Gotten to Yes? An
Appreciation and Some Reflections (2006) 22 Segotiation Journal 485, 485-487 (stating that communitarian
bargaining has revolutionized how negotiation is taught in law schools).
205
Condlin, above n 202, 1, n 3. See also Communitarianism
<http://plato.stanford.edu/entries/communitarianism> at 9 August 2010.

good for the social group, on the basis of consensus norms, rather than from the
perspective of what is good for the individual negotiator, on the basis of a rights
206
claim.
Clients and lawyers using this approach allegedly share information about
themselves and their situations candidly and honestly, construct agreements from
the perspective of their common interests and resolve differences according to
207
objectively derived and jointly agreed upon substantive standards. This
communitarian approach results in a bargaining model where self-interest, a
central motive of traditional bargaining methods is not naked, force is not brutish,
entitlement claims are not legalistic and everyone acts in the spirit and to the
208
limits, of their social potential.
A central mechanism of communitarian bargaining theory is the meta argument.
According to Condlin, the meta argument goes beyond the frame of reference of another
person to a conversation to trump that persons views with those of a higher order...and
attempts to resolve disagreement from a higher vantage point, one that takes more
209
relevant data and ideas into account. In other words, instead of focusing on an
individuals specific point of view, the meta argument looks at the bigger picture and
attempts to dispose of opposing contentions by interjecting a different perspective, more
information, or other higher view to resolve the disagreement. This aspect of
communitarian bargaining is especially relevant to the
206
Condlin, above n 202, 1, n 3.
207
Condlin, above n 202, 1-2
208
Condlin, above n 202, 3. Condlin actually disputes these purported benefits of communitarian bargaining
as being too idealistic and not grounded in reality, as more mythic than data-based and appealing to those
who have little direct experience with bargaining practice itself or those who do have practice but have failed
and so now want to change the ground rules so they will do better in the future. (Ibid at 4).
209
Condlin, above n 203, 1.

focus of this thesis because the meta argument would presumably preclude
the use of deception in negotiation as it would not be conducive to the goal
of resolving disagreement and achieving agreement.
Proponents of communitarian bargaining seem to consider it a more
civilized approach to bargaining as compared with adversarial bargaining,
which is sometimes described as representing a refusal to bargain, a process
of presenting an unbreachable defensive position which an opponent cannot
210
dislodge or defeatby any means of persuasion based on the merits.
Murray describes adversarial bargainers as those who coerce, deceive, and
211
manipulate opponents, have total disregard for the costs or concerns of
212
others and ignore concerns of fairness, wisdom, durability, and efficiency.
Conversely, opponents consider the communitarian approach to
bargaining as not grounded in reality and based on myth rather than the real-life
aspects of bargaining. Opponents to communitarian bargaining believe the
adversarial bargaining approach represents the way legal bargaining actually
takes place and argue that, in the end, both lawyers and their clients are better off
pursuing individual rather than communal goals and are likely to do better at the
bargaining table if they are secretive as well as open, argumentative as well as
accommodating, suspicious as well as trusting, stubborn as well as flexible, and
213
combative as well as cordial, thus dismissing a solely communitarian
bargaining approach as self-defeating in the context of legal bargaining.
210
Condlin, above n 203, 10 (citing John S Murray, Understanding Competing Theories of
Negotiation (1986) 2 Segotiation Journal 179, 183.
211
Murray, above n 210, 183.
212
Ibid.
213
Condlin, above n 202, 6.

Over the last two decades, three other theoretical frameworks have
emerged as being dominant with respect to the theory of negotiation and, and
214
more specifically, the legal negotiation process. These key developments are
important to understanding how traditional negotiation as practiced by non-
lawyers has evolved into negotiation as practiced by lawyers and the ethics that
might guide the lawyers conduct in negotiations depending on the relevant
theory of negotiation, including whether the use of deception is permissible.
First, in 1984, Menkel-Meadow proposed that all negotiations can be
215
classified according to two categories: problem-solving or adversarial.
Adversarial negotiation, considered a traditional model of negotiations, has
also been called zero-sum bargaining, distributing bargaining, and value
216
claiming. In the context of this thesis, a lawyer who operates under an
adversarial advocate model of legal ethics would presumably use adversarial
negotiation practices as the norm since the ethics align with practice.
As defined by Menkel-Meadow, the problem-solving model is based on finding
217
solutions to the parties set of underlying interests rather than focusing solely on
strategies and tactics. The problem-solving approach to negotiations has been
classified as a win-win, integrative bargaining or value creating model whose focus is
on finding the underlying needs and interests of the parties in order to come to a
solution that is mutually beneficial without unnecessary compromise. Menkel-
214
Korobkin, above n 37, 1 (defining negotiation as an interactive communication process by which two or
more parties who lack identical interests attempt to find a way to coordinate their behaviour or allocate
scarce resources in a way that will make them better off than they could be if they were to act alone.)
215
Korobkin, above n 37, 17-21; See also Carrie Menkel-Meadow, Toward Another View of Legal
Negotiation: The Structure of Problem-Solving (1984) 31 University of California Los Angeles Law Review
754, 765-772, 780, 800-805.
216
See, eg, Menkel-Meadow, above n 215, 764-794 (discussing the adversarial model).
217
Menkel-Meadow, above n 215, 794; See also Fisher and Ury, above n 11.

Meadows argues that because lawyers bargain in the shadow of the law, legal
negotiators tend to operate from the adversarial negotiations paradigm with a
218
focus on maximizing victory, even if this might mean crossing ethical boundaries.
Second, in 1993, Mnookin proposed that negotiation is really about how
219
parties overcome obstacles in order to reach mutually advantageous solutions.
Therefore, the essence of negotiations is the factors that impede the ability of
negotiating parties to reach agreement on a solution. Mnookin identified at least
220
three categories of barriers: strategic, cognitive, and the principle/agent problem.
Presumably, resolution to each of these types of barriers is not only the goal of
221
negotiations but a mark of whether a negotiation may be considered successful.
Finally, in 2000, Korobkin introduced a fourth primary theoretical perspective
of negotiation. Korobkin argued for a positive theory of negotiations, one in which all
negotiations can be understood in terms of zone definition and surplus
222
allocation. According to Korobkin, a key aspect of any negotiation is determining
the bargaining zone, defined as the space below a buyers reservation price but
223
above the sellers reservation price. Within the bargaining zone, a partys
reservation price is the most[a party]will pay to obtain a valuable item through
224
negotiation or the least that[a party]will accept to give up a valuable item.
According to Korobkin, all negotiations entail defining the range of the bargaining
218
Menkel-Meadow, above n 215, 765-772, 780, 800-805. See also Korobkin, above n 37, 18.
219
Korobkin, above n 37, 26-29; See also Robert H Mnookin, Why Negotiations Fail: An Exploration of
Barriers to the Resolution of Conflict (1993) 8 Ohio State Journal of Dispute Resolution 235, 235-
245.
220
Korobkin, above n 37, 26-29; See also Mnookin, above n 219, 235-245.
221
See Section 2.2.4 (Definition of Success in Negotiation) for an in-depth discussion.
222
Korobkin, above n 37, 21-25; See also Korobkin, above n 32, 1791-1792, 1799-1812, 1816-1831.
223
Korobkin, above n 37, 41- 42.
224
Ibid. A reservation price is also known as the reservation point.
225
zone (zone definition), determining the cooperative surplus, and then allocating
that surplus amongst the bargaining parties. An important aspect of this theory is
Korobkins recognition of the economic aspect of negotiations (zone definition)
entwined with the more social aspects (surplus allocation), where issues of
226
procedural fairness, and perceptions of ethics come into play.
The preceding section described four main theoretical perspectives on
negotiation and the negotiation process. In the context of this thesis, the theoretical
perspectives of the negotiation process provide a foundation to realising that
negotiation appears to be a distinct process composed of certain expectations,
behaviours, steps, and strategies. Furthermore, these theories of the negotiation
process impact the kinds of ethics a lawyer might use during negotiation and the
resulting behaviours because just as theories of law intersect with theories of legal
ethics, so do theories of negotiation intersect with theories of negotiation ethics. This
will be important in light of the policy reform proposals discussed in Chapter 7.
2.3.5 Theories of 4egotiation Ethics
In contrast or perhaps complementary to the generally accepted legal ethics
theories discussed in section 2.3.3, Shell, a notable dispute resolution scholar, argues
for three slightly different schools of ethics as they pertain specifically to bargaining
227
(negotiations) and its effects on deceptive practices within negotiations. In the
context of this thesis, it is important to note that in the absence of guidelines to the
225
Korobkin, above n 37, 41- 42 (defining cooperative surplus as the breadth of the
bargaining zone that is, the distance between the two parties reservation pricesor joint
value that the parties can create by reaching agreement).
226
Korobkin, above n 37, 22, 24-25.
227
G Richard Shell, Bargaining with the Devil Without Losing Your Soul in Carrie Menkel-Meadow and
Michael Wheeler (eds) Whats Fair: Ethics for Segotiators (2004) 65-69.

10
contrary, lawyers may use one or more of these models to guide negotiation
behaviour regardless of whether any might violate the legal ethics rules.
According to Shell, the first negotiation ethic is the poker school of
bargaining, which holds that negotiations are like a poker game and, as such,
must be played by the rules of the game. In this bargaining ethics scenario,
lying is simply like a poker chip, bluffing is allowed (even expected) but hiding
228
cards or reneging on one's bets is not allowed. The poker school of
bargaining closely relates to the end-results social ethics model discussed in
section 2.3.2.3 above. The poker game analogy is also most commonly used
by the adversarial advocate theory of legal ethics.
The second negotiation ethics model is the idealist school, which argues that
bargaining is an inherent part of life. The ethics used in ones personal life should be the
229
same ethics used in negotiations. It follows that if, in your personal life, you do not
condone lying, then you should not lie in your professional negotiations. The idealist
school of bargaining ethics does not exclude lying, especially in certain circumstances
such as protecting someones feelings. Because this model more closely integrates
religion and philosophy, it appears to be a combination of the social contract and
personalistic social ethics models discussed in section 2.3.2.3 above.
Finally, the third bargaining ethics school is the pragmatist approach. This
approach argues for acting based on what is practical, realistic, or sensible given the
circumstances. In regards to lying, the pragmatist recognizes that deception is part of
228
Cindi Fazzi, Book Review: Whats Fair: Ethics for Segotiators, edited by Carrie Menkel-Meadows
and Michael Wheeler (2005) 60-JUL Dispute Resolution Journal 89, 89.
229
Shell, above n 227, 65-69.

negotiations but would rather not use it given the long-term costs of
230
using such a tactic, such as relational, reputation or transaction costs.
While Shells three bargaining ethics models assume deception as part of
the negotiation process, bargaining ethicist Norton believes fully understanding
the bargaining process is essential to having the proper ethics in which to engage
in bargaining. In effect, Norton discounts the existence of deception in negotiation
231
and argues that truthfulness and fairness are vital to negotiations and set the
baseline for reaching durable agreements by imposing a minimal, though not
always aspirational standard of bargaining ethics. Norton contends that ethical
clarity is taxed in a process in which both truthfulness and deception have
232
standing. While Shell believes Shells three bargaining ethics models are
sufficient to describe negotiation ethics, Norton argues that there are four
aspirational bargaining ethics models. These models are discussed briefly below.
According to Norton, the first aspirational bargaining ethics model is
universalism, whose most ardent supporter may be considered to be Judge Alvin
233
Rubin. Universalism may also correlate to Shells idealist model of bargaining ethics
discussed above. Universalism proposes to push negotiation ethics towards universal
ethical norms with greater priority on societal interests over considerations of self-
234 235
interest as the center of gravity in negotiations. Universalism rejects special
rules that may apply to an individual because of his or her special role or cultural
process. Universalists such as Judge Rubin argue that because lawyers serve
230
Ibid.
231
Norton, above n 19, 271.
232
233
See, eg, Rubin, above n 69, 577; See also Wetlaufer, above n 31, 1219.
234
235
Ibid.

society and not just their clients in the just determination of disputes, lawyers have
236
an affirmative duty of candour, including voluntary disclosure during negotiations.
Judge Rubin places a higher value on honesty as a positive value and one which
237
implies not only telling [the] literal truth but also disclosing the whole truth.
Universalist bargaining ethics, however, appears to sharply contradict the
central paradigms of negotiation, especially those of legal negotiation. First, a
universalist ethic presupposes and would ask lawyers to interject societal
interests into a process that is generally intrinsically individualistic given the
238
adversarial nature of the legal system. Second, a universalist bargaining ethic
does not appear to give sufficient weight to both the partisan nature of the
adversarial system or the partisan interests inherent in real negotiations,
239
especially those involving lawyers. While truth and fairness could be said to
transcend partisan/individualistic concerns, the reality of most negotiations
appears to be such that a universalist duty of candour would be problematic
given that available evidence confirms the notion that truthfulness is a particular
240
source of ethical tension in negotiations. Nevertheless, aspirational notions of
truthfulness and fairness are favoured by many and may still be achieved.
A second aspirational bargaining ethics model, in sharp contrast to
universalism is the traditionalist view, which coexists with the classic bargaining
process of offers and counteroffers. Traditionalism could be correlated to Shells poker
school of bargaining ethics and Parker and Evans adversarial advocate legal
236
Norton, above n 19, 276. (discussing Rubins universalist views).
237
Rubin, above n 69, 582, 589-591.
238
239
Ibid.
240

241
ethics model discussed earlier. Traditionalism is based on zero-sum self-interest.
Zero-sum bargaining is also referred to as distributive bargaining, win-lose, or lose-
242
win.
243
Traditionalism is the dominant ideology of the legal profession. As such,
traditionalists draw from the ethics of the adversary system. This is most commonly
expressed in the oppositional stance assumed by lawyers with clients against others
with adverse interests and is justified by intense loyalty in order to adequately represent
244 245
a client. Traditionalists, such as James White, appear to specifically reject
universalism and place partisan, individualistic, and self-interest concerns well above
societal interest. In fact, traditionalists would push bargaining ethics to the outer limits to
the point where a lawyer might use a lower standard than he would if he were acting for
himself, and lower too, than any standard his client himself would be willing to act on,
246
lower, in fact, than anyone on his own. As Curtis explains, the traditionalist lawyers
primary concern is loyalty to the client and this higher responsibility, one that is the
foundation of zealous representation of the client as well as the traditional foundation of
the adversarial system, allows the lawyer to lie for the client when he could not justify
247
lying for himself. Without this chief asset of the profession, in other words, the
248
freedom from the strict bonds of veracity, lawyers
241
242
See, eg, Fisher and Ury, above n 11 (discussing the distinctions on various ways to conduct
distributive bargaining).
243
244
Ibid.
245
See, eg, White, above n 60, 929.
246
Charles P Curtis, The Ethics of Advocacy (1951) 4 Stanford Law Review 3, 3-23.
247
Norton, above n 19, 277. Note that in some jurisdictions and perhaps in some cultures, explicit or implicit
rules specifically allow such deception on behalf from the client, including duties of confidentiality and non-
disclosure of certain information as part of attorney-client privilege; Curtis, above n 246, 9 ( one of the
functions of a lawyer is to lie for his client He is required to make statements as well as arguments which
he does not believe in.)
248
Curtis, above n 246, 9.

who espouse to this traditionalist view would argue that they are not able to
effectively serve their clients who are, in effect, members of society. A
traditionalist view of bargaining ethics is intricately woven into the fabric of the
traditional bargaining ethics of the adversary system and would potentially
require a massive overhaul to impose an alternative bargaining ethic.
A third aspirational bargaining ethics model is the relativist ethic. The
relativist ethic may provide a means of departure from a strictly universalist or
traditional bargaining ethic because instead of applying strict rules across all
negotiations (universalist ethic) or adopting the majority view of bargaining
(traditional ethic), the relativist ethic argues for bargaining rules relative to the
situation or context within which bargaining occurs.
For example, Norton argues that the difference between litigation and
non-litigation means of resolving disputes may provide an avenue for a specialist
ethic, a bargaining ethic that is relative to the process used (e.g., whether it
249
required courtroom advocacy, a judge, or simply a non-legal neutral). While a
relativist bargaining ethic would seek to maintain the benefits of both
universalism and traditionalism, it does not appear clear whether such divisions
would create more confusion or provide ethical clarity. It would seem that a
relativist ethic would leave ethics more diluted and less cohesive so as to
increase the chances of deception, albeit in perhaps more subtle ways.
Pragmatist ethics is a final aspirational bargaining ethic, one which Shell also
250
supports and recognises. Pragmatism eschews the theoretical underpinnings of
universalism and traditionalism. This model advocates for bargaining experience as
249
250
Shell, above n 227, 65-69.

251
the primary basis for a bargaining ethic. It is the range of acceptable
252
agreements for experienced negotiators in the field in question. A pragmatist
would use a different bargaining ethic depending on the skill and sophistication of
each opponent as well as the circumstances surrounding the negotiation.
Context, as in the negotiation context, is a determinative factor in deciding
which ethic is appropriate. Pragmatism does not automatically defer to the societal
ethical norms (universalism) or adopt a classic adversarial stance (traditionalism) or
even conform to a bargaining ethic relative to a persons position or cultural process
(relativism). Pragmatism appears to favour using the bargaining experience, which
may include widespread ethical practices or not, as the basis for determining which
253
ethical standard is appropriate. As such, pragmatism may correlate to the
responsible lawyer legal ethics model discussed earlier as both seek to make the
best decisions without compromising personal or professional integrity and
reputation. While functional and perhaps even common practice among lawyers,
pragmatism as a bargaining ethic raises several concerns.
First, pragmatism assumes that what is common practice is an appropriate
ethical standard. The appropriateness of the ethical standard would likely be
measured at a higher level than just one given situation or step in the negotiation.
The standard may be the prevailing societys ethical standard, likely higher than that
of a given negotiation context. Second, pragmatism has serious methodological
254
problems. In essence, as Norton questions, without data or some means of
251
252
Lowenthal, above n 28, 411.
253
254

identifying and evaluating practices, how does one assess the extent to which
255
a deviation from the truthfulness and fairness baseline is unethical?
In brief, these various bargaining ethics models play a part in any
negotiation. The bargaining ethics of the legal negotiator may conflict with the
societys ethical norms, the clients ethics or even the ethics of a mediator, if one
is employed to assist in the negotiations. Knowledge and sensitivity to such
conflicts may increase the chances that a lawyer can properly manage potentially
deceptive practices, especially in negotiation. However, even sensitivity to the
ethics in the context of a negotiation may not be sufficient if certain theories of
deception and decision-making hold true during the negotiation. These theories of
deception and decision-making theories, which may affect the extent to which
deception is used in negotiation, are discussed in the next two sections.
2.3.6 Theories of Deception and Lies in Practice
As discussed in the preceding sections, the prevailing legal ethics
codes as well as the prevailing negotiation theory in the legal jurisdiction may
heavily influence whether deception in negotiation is permissible. In addition,
a lawyers own view of the nature and impact of deception may affect the
decision to use deception in negotiation, whether personally or professionally.
The purpose of this section is to provide a theoretical perspective on
deception and lies in practice so as to better inform the results of the research
questions as discussed in Chapters 3, 4, and 6 and to provide a foundation for
understanding the policy reform recommendations presented in Chapter 7.
255
Ibid. Note that this problem would likely occur under any of the models simply because
truthfulness and fairness are not expressly identified criteria of measuring or evaluating
negotiation success or outcome.

Whether deception is a necessary evil appears to depend on the eye of the
beholder. Theoretically, there appear to be two distinct views on deception. The
deontological view of lying states that lying is intrinsically wrong, always has a
256
negative value, regardless of reason, and should be prohibited. As discussed
earlier, deontologists consider lying to be inherently wrong because of the following
primary reasons: 1) lying violates contractual commitments between two
interlocutors who assume by default that the other person always tells the truth; 2)
lying limits the lie-recipients freedom of choice and leads the person to make an
uninformed decision; and 3) lying creates an internal conflict on the part of the lie-
teller and cognitive dissonance in the lie-tellers belief system, which can be
257
hazardous to the lie-tellers psychological well-being.
In sharp contrast, proponents of the social-conventional view of lying argue that
lying has inconstant values and may be considered right or wrong depending on social
258
and cultural conventions. In some socio-cultural conventions, lying may be
considered positive and sanctioned while in others, lying is prohibited and has a
259
negative value. In addition, social-culturalists discount the deontological perspective
of lying as wrong, suggesting instead that the deontological view reflects only the
260
Western, individualist view and does not take into account cultures (e.g. Asian),
where concerns for individual rights to information, freedom of choice,
256
This is the view of someone like Emmanuel Kant. See also Bok, above n 33, 26; J
Krupfer, The moral presumption against lying (1982) 36 Review of Metaphysics 103126.
257
Lee et al (2001), above n 72, 527.
258
Lee et al (2001), above n 72, 526-527 (citing E Ochs Keenan, On the universality of conversational
implicatures (1976) 5 Language in Society 67-80).
259
Lee et al (2001), above n 72, 526-527 (citing Harry C Triandis, Individualism and collectivism (1995).
Triandis work on cross-cultural differences with respect to a variety of factors is well-respected and
well-referenced in the field.
260
Note: The use of Western and Asian terms is not meant to stereotype countries or people. These terms,
as used here, indicate a common view that some countries are more concerned about

and mental health are not necessarily critical factors for deciding the moral
261
implications of lying. In non-Western cultures, Lee et als research
suggests that concerns for collectivity, and sometime divine forces are
262
important determinants of whether lying is right or wrong.
2.3.7 Decision-Making Theories Affecting Legal 4egotiation

263
The legal systems foundation is a system of rules by which scholars,
legislators, judges, and regulators attempt to balance the need to discourage
undesirable behaviours while encouraging other more favourable behaviours. In so
doing, law and economics scholars have referred to certain decision-making theories to
better understand human behaviour and how decisions are made in the context of legal
negotiation. While these theories many not be widely used, they do offer insights that are
useful in answering the research questions at hand. For example, one of the key skills of
a lawyer is risk management, both for the client and the lawyer. Given both the
264
perceived benefits and harms caused by deception in negotiation, it could be argued
that the decision to be deceptive is a risky decision.
One way in which these decision-making theories are useful is in
understanding how a lawyer might evaluate the risk involved in using deception in
individualistic views and priorities (western) versus group or collectivist views (asian)
regarding the use of lying or deception and the factors that influence whether it is right or
wrong. For the lawyer acting as negotiator, the key question is whether it is permissible for a
lawyer, as an officer of the court and representative of the legal system, to lie, regardless of
whether in a negotiation or otherwise. Lying in negotiation seems permissible precisely
because it is such an acceptable part of traditional negotiations.
261
Lee et al (2001), above n 72, 527.
262
Lee et al (2001), above n 72, 527; See also K Lee and H Ross, The concept of lying in adolescents and
young adults (1997) 43 Merrill-Palmer Quarterly 255-270; E E Sweetser, The definition of lie; An examination
of the folk models underlying a semantic prototype in D Holland (ed) Cultural models in language and thought
(1987) 43-66 (Sweetsets research pointed to lying as a social-cognitive construct influenced by social
conventions).
263
Note: By rules, I mean legislation, legal principles derived from case law, codes of conduct, court rules
and any similar prescriptions, which deem to regulate conduct and punish for violation thereof.
264
See Chapter 2, Section 2.2.2 (Deception as a Negotiation Strategy) for a detailed discussion of
harms and perceived benefits of using deception as a negotiation strategy).

negotiation. In addition, by understanding how lawyers and clients make decisions
when confronted with risky behaviour, educators and policy makers can better guide
behaviour or develop policies that take into account certain behavioural
expectations, resulting in greater success in developing, implementing, and
measuring policy outcomes. The purpose of this section is to discuss these key
decision-making theories with an eye towards how these theories may affect the
implementation of the policy reform proposals outlined in Chapter 7.
One of the chief decision-making theories long used by law and economic
265
scholars is rational choice theory or expected utility theory. Rational choice theory is
based on a series of logical axioms and argues that people make outcome maximizing
266
decisions. In other words, people will make those decisions which maximize their own
self-interests. This theory is consistent with basic human nature that tends to focus on
self-interests. However, rational choice theory began to fall into disfavour as legal
scholars recognised that there was too much credible experimental evidence that
267
individuals frequently acted in ways that are incompatible with the assumptions
proposed by rational choice theory. In other words, individuals do not always make
rational choices. Out of a critical analysis of the rational choice theory and a greater
understanding of human decision-making, a new theory, called
265
Daniel Kahneman and Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk (1979) 47(2)
Econometica 263-291; See also Chris Guthrie, Prospect Theory, Risk Preference, and the Law (2003) 97
Sorthwestern University Law Review 1115, 1115-1119; Thomas S Ulen, Firmly Grounded: Economics in the
Future of the Law (1977) Wisconsin Law Review 433, 436 (The single most important contribution that law
and economics has made to the law is the use of a cogent theory of human decision-making [rational choice
theory] to examine how people are likely to respond to legal rules.)
266
Guthrie, above n 265, 1115.
267
Russell B Korobkin and Thomas S Ulen, Law and Behavioral Science: Removing the Rationality
Assumption from Law and Economics (2000) 88 California Law Review 1051, 1055.

prospect theory, emerged in the wake of evidence from the fields of
behavioural law and economics as well as law and psychology.
In 1979, cognitive psychologist and Nobel laureate Daniel Kahneman and
cognitive psychologist Amos Tversky developed prospect theory through an empirical
study involving students and university faculty in response to several hypothetical choice
268
questions. There are four primary components of prospect theory, which argues that
269
people do, in certain circumstances, make risky or uncertain decisions.
These four primary components, discussed in detail below, include: 1) the framing
of ordinary gains and losses; 2) the framing of low-probability gains and losses; 3)
the perception of loss aversion; and 4) overvaluing the sense of certainty.
The proposition of prospect theory counters rational choice theory and the
assumption that people generally assume a position of either risk neutrality or risk
270
aversion in the face of both gains and losses. In other words, rational choice theory
says people never make risky choices or risky decisions, whether faced with a
probability of achieving gains or incurring losses. This seems to be based on an
objective (rational) assessment of their expected loss in comparison to their perceived
total wealth at the time of making the decision. In contrast, prospect theory holds that
people will make risky or uncertain decisions regarding gains or losses in one of four
particular ways, as discussed below. Decisions under prospect theory tend to be
268
See generally, Kahneman and Tversky, above n 265, 264-268; See also Avnita Lakhani, The Fog Has
Not Lifted Section 198J of the NSW Legal Profession Act in Light of Acceptable Negotiation Theory and
Principles (2006) 18.1 Bond Law Review 61 (discussing how prospect theory applies to lawyer behaviour
during certain types of negotiations in light of section 198J of the NSW Legal Profession Act).
269
Guthrie, above n 265, 1115; See also Jeffrey J Rachlinski, Gains, Losses, and the Psychology of Litigation
(1996) 70(1) Southern California Law Review 113, 121 (Expected utility theory predicts that people make
either risk-averse or risk-neutral choices depending upon the magnitude of the stakes relative to their total
wealth. In contrast, prospect theory predicts that people make either risk-averse or risk-seeking choices
depending upon the characterization of the decision as a loss or as a gain.).
270

guided by a non-rational, subjective assessment based on ones perception of
the magnitude of expected or imagined gain or loss. The next four paragraphs
discuss each of the four primary components of prospect theory in detail.
The first component of prospect theory deals with ordinary gains and losses.
Under the framing of ordinary gains and losses component, when choosing between
options that present the probability of a gain relative to a specific reference point,
prospect theory says that the person will make a risk-averse choice. Conversely, if
choosing between options that present the probability of incurring a loss, prospect theory
271
holds that the person will make a risk-seeking choice. Guthrie cites the example of
winning a prize or paying a fine. Under this first component, people will generally choose
272
a definite $1,000 prize over a 50% chance at receiving a $2,000 prize (gain options).
Conversely, where there are loss options relative to a particular reference point, decision-
makers will generally risk a 50% chance of incurring a $2,000 fine rather than pay a
273
definite fine of $1,000. With regards to the use of deception in negotiation, one might
expect that if a person has a 100% chance of successfully deceiving the opposing party
in a negotiation to their benefit as compared with a 50% chance of being discovered and
punished for using deception, the individual will make the choice to deceive the opposing
party because they stand to gain from that conduct relative to their perception of loss.
Conversely, they will
271
Guthrie, above n 265, 1118 (discussing the first component of prospect theory, the framing of
ordinary gains and losses).
272
273
Ibid.

choose not to use deception in negotiation if they believe the deception will
274
result in a greater loss than the perceived gain.
The second component of prospect theory concerns a decision-makers
behaviour when faced with low-probability gains and losses. In this circumstance,
prospect theory holds that a persons risk preferences are reversed relative to the
first component of ordinary gains and losses. In other words, [i]ndividuals tend to
make risk seeking choices when selecting between options that appear to be low-
probability gains and risk-averse choices when selecting between options that
275
appear to be low-probability losses. Using the same example above, people will
take the gamble of a 50% chance at winning $1,000 over a definite $50 prize;
however the same person will tend to prefer paying a definite $50 fine rather than
276
risk a 5% chance of paying a $1,000 fine (still $50 yet a risk-averse choice).
The third component of prospect theory, loss aversion, states that a
prospective loss has greater weight on the mind of the decision-maker as a
277
compared to a prospective gain of the same value. Therefore, the
prospective loss of $1,000 will be more aggravating and weigh more heavily
on a persons mind than a prospective gain of $1,000.
Finally, the fourth component of prospect theory states that people overvalue a
278
sense of certainty. In other words, decision-makers overweigh outcomes that are
274
See, eg, White, above n 60, 927 (if the low probability of punishment means that many lawyers will violate
the standard [concerning truthfulness in negotiation], the standard becomes even more difficult for the honest
lawyer to follow, for by doing so he may be forfeiting a significant advantage for his client to others who do not
follow the rules; Scott S Dahl, Ethics on the Table: Stretching the Truth in Negotiations (1989) 8 Review of
Litigation 173.
275
Guthrie, above n 265, 1118 (discussing the second component of prospect theory, the framing of low-
probability gains and losses).
276
277
Kahneman and Tversky, above n 265, 263-291; Guthrie, above n 265, 1118.
278
Kahneman and Tversky, above n 265, 265; Guthrie, above n 265, 1118.

279
considered certain relative to outcomes which are merely probable. Using
another example, while most people would prefer a definite prize of a one-
week tour of England over a 50% chance of winning a three-week tour of
England, these same individuals would prefer a 5% chance of a three-week
280
tour of England over a 10% chance at a week-long tour.
Two key aspects drive the conclusions of prospect theory. These same
aspects could be construed as limitations to its value; nevertheless, prospect
281
theory is arguably applicable to every area of law.
The first key aspect that drives prospect theory is the use of a reference point as
282
a critical factor in decision-making. Kahneman and Tversky observed that reference
points are important not only in decision-making but also in forming impressions and
making judgments. Reference points for a given person may be single or multiple given
283
the circumstances. For example, if litigants compare a settlement offer relative to a
best-case scenario at trial, their decision may be different than comparing the same
options to a worst-case scenario in terms of gains or losses and the ultimate decision to
settle. Reference points are crucial to understanding whether a person will likely make a
risk-seeking or risk-averse decision. Reference points may also determine the way in
which an offer or counteroffer is framed in the mind of the offeree so as to potentially
determine their decision-making preferences.
279
Kahneman and Tversky, above n 265, 265; Guthrie, above n 265, 1119.
280
Ibid.
281
Guthrie, above n 265, 1120 (prospect theory sheds light on the way people behave in each legal area and
the way legal doctrine evolved.) See also Guthrie, above n 265, 1163 ([prospect theory] represents a
valuable refinement to the maximization assumption and should inform law teaching, legal scholarship, and
policymaking.).
282
283

In the context of this thesis and as applied to the use of deception in
negotiation, a lawyers reference point, whether perceived in terms of a gain or
loss, might have a significant impact. For example, during discussions with a client,
the lawyer may have the authority to settle for $50,000 with the perception that he
might get at least $65,000 at trial. Presumably, the amount of $50,000 becomes the
reference point. During settlement discussions, if the lawyer gets an offer from the
opposing party of $45,000, he may perceive this in terms of a loss relative to the
clients expectation of $50,000. In addition, the lawyer may to use deception or a
form of strategic posturing to try and settle for a value closer to $65,000 and might
even reject an acceptable offer of $50,000 as approved by the client.
A second key aspect that drives prospect theory is that it describes how
284
individuals, in general, make risky decisions. It does not take into account
differences across individuals, groups, or across cultures. Questions still remain
about whether prospect theory can apply to group decision-making due to
285
insufficient experimental studies. Therefore, prospect theory analysis may be
used to determine or measure individual decision-making and how various
perceptions of gain or loss may drive the need to use deception in negotiation.
Despite certain perceived limitations, law and economic scholars have
leveraged prospect theory to develop two related litigation theories to explain
how litigants may potentially make decisions in two key scenarios. These
scenarios involve ordinary litigation and low-probability or frivolous litigation.
284
Guthrie, above n 265, 1160-1161.
285

286
The Framing Theory of decision-making states that in ordinary litigation,
plaintiffs and defendants will make different decisions depending on how they
287
perceive the litigation options. In general and consistent with prospect theory, the
framing theory predicts that plaintiffs are more likely to prefer settlement over a trial
288
(risk-averse) while defendants would likely prefer trial (risk-seeking).
In contrast, the frivolous framing theory applies to frivolous or low
probability litigation, where the plaintiff typically chooses between a relatively
small settlement amount and a low likelihood of obtaining a much larger amount
at trial while defendants must choose either to pay some small settlement or
289
face a low likelihood of having to pay a much larger amount at trial.
In essence, plaintiffs are faced with low probability gain options and
defendants are faced with low-probability loss options. The frivolous framing
theory, consistent with the second component of prospect theory, states that
in this situation, plaintiffs will likely prefer trial (risk-seeking) while defendants
290
will prefer to settle (risk-averse).
291
In addition to prospect theorys application to potential litigation behaviour,
scholars such as Guthrie, Rachlinski and Painter believe that prospect theory may also
help in understanding lawyers behaviours with regards to professional responsibility, for
example, as defined under the American Bar Associations Model Rules of
286
Rachlinski, above n 269, 113. Rachlinski is often credited with developing this theory.
287
Note: This likely refers to the litigants reference point and may also refer to how a given litigation situation
is framed by the lawyer.
288
Rachlinski, above n 269, 118.
289
290
Ibid.
291
Note: Guthrie, Rachlinski, and Painter discuss prospect theory as applied to litigation behaviour. Given
that litigation behaviour involves significant negotiation, these same principles can apply to negotiations
behaviour.

292
Professional Conduct (MRPC). The MRPC, in addition to providing
guidelines for how lawyers should behave in practice, also prohibits lawyers
293
from engaging in certain conduct that is deemed unethical.
In the context of this thesis, prospect theory may be sued to better analyse and
predict the effectiveness of legal ethics codes. The rational choice theory predicts that
lawyers will only violate ethical rules if the expected benefits outweigh the costs.
However, prospect theory predicts that lawyers will act unethically depending on how
well each lawyer believes the case is progressing such that if things are going well
(gains), risky ethical violations will seem unattractive whereas these same violations
294
are more attractive if the case or transaction is progressing poorly.
295
Painter used two cases to illustrate that prospect theory may account for
the lawyers behaviour in the two cases and generally may explain why, sometimes,
the worse things get, the more likely a lawyer is to compound his own and his
296
clients troubles with violations of ethical rules, violations of law or both.
In conclusion, while these three primary theories of decision-making may require
further experiential evidence in negotiation, they go some ways to helping explain how
participants in the legal system behave whether engaged in true civil litigation or in other
dispute resolution processes such as negotiation and mediation. Of particular relevance
to this thesis is the possible application of these theories in the
292
Guthrie, above n 265, 1139 (citing the American Bar Association Center for Professional
Responsibility, Model Rules of Professional Conduct (2003).
293
American Bar Association Center for Professional Responsibility, Model Rules of Professional Conduct
<http://www.abanet.org/cpr/mrpc/mrpc_toc.html> at 9 August 2010. I reference MRPC but this applies to
codes of conduct for lawyers in other jurisdictions such as the Legal Profession Act (2007) Qld in Australia.
294
Guthrie, above n 265, 1139-1140 (citing Richard W Painter, Lawyers' Rules, Auditors' Rules and the
Psychology of Concealment (2000) 84 Minnesota Law Review 1399).
295
Painter, above n 294, 1399. These cases are not discussed here in detail.
296
Painter, above n 294, 1422.

context of deceptive practices in legal negotiations where lawyers play a
prominent role and where professional responsibility collides with potential
ethical misconduct and its ramifications. Perhaps better understanding and
application of these theories can assist in minimizing or even eliminating the
extent to which the use of deception is perceived as beneficial.
2.3.8 Theories of Lawyer-Client Relationships and Legal 4egotiation
The degree to which legal practitioners may use deception during
negotiations is also influenced by the model of lawyer-client relationship under which
the legal practitioner, consciously or unconsciously, practices. While legal practice
continues to evolve, there are two widely discussed theories of lawyer-client
297
relationships. In the context of this thesis, a particular model of lawyer-client
relationship may influence the degree to which a lawyer uses a particular bargaining
ethic and the extent to which deception in negotiation is deemed acceptable.
The first lawyer-client relationship model is the traditional model. The
traditional model of lawyer-client relationship is based on the adversarial systems
view of zealous advocacy and intense client loyalty. This model presumes that
lawyers are motivated by altruism and do not allow conflicting interests to interfere
298
with his or her devoted service to the client. Those who subscribe to this view
believe it unthinkable that lawyers lie to their clients with a seemingly unwavering
299
view that [t]he question of whether a lawyer may lie to a client is simply absent.
Even if these same lawyers use deception, the traditional model attempts to justify
297
See, eg, L Ray Patterson, An Inquiry into the Nature of Legal Ethics: The Relevance and Role of the
Client (1987) 1 Georgetown Journal of Legal Ethics 43, 44 n 7; Charles Fried, The Lawyer as Friend: The
Moral Foundations of the Lawyer-Client Relation (1976) 85 Yale Law Journal 1060, 1060; Freedman,
above n 176, 9.
298
299

deception as necessary in order for lawyers to fulfil their duties to their clients, with
300
the duties to the client being paramount over duties to the court or the public.
According to Lerman, the traditional model might be viewed as smokescreen that
obscures the pecuniary interests of lawyerslawyers solely devoted to client
interests[in an effort] to reassure clients that their lawyers are not exploiting
301
them. Within the traditional model, the duty of zealous representation of clients
takes precedence over duties to court, the justice system, and public interest.
Opponents of this view argue that it is precisely this imbalance between seemingly
competing duties that results in lawyers being criticized as paternalistic,
302
manipulative, or exploitive of their clients to the point of detracting clients from
receiving the benefits of the legal system to which they are entitled.
The second lawyer-client relationship model is the revisionist model. In an effort
to address the concerns raised by the traditional lawyer-client relationship model, such
as the fear that such intense loyalty to clients under the traditional model leads to too
303
much deception of tribunals, revisionists have reconceptualized lawyer-client
relationships based on moral analysis and an empirical examination of what actually
304
takes place in interactions between lawyers and clients. The revisionist model is
based on principles of client autonomy and a client-centred practice. Proponents of this
model argue that the lawyer owes a greater duty to the court than the conception of
exclusive loyalty to the client would allow.
300
301
302
Lerman, above n 60, 669. This view of lawyers is common as expressed by the perception of
continued resentment of lawyers by the public in a variety of formats.
303
Lerman, above n 60, 668 (referring to Judge Marvin Frankels criticism of the traditional model).
304
10
Under the revisionist model, the client has a larger voice in the decisions
that affect the outcome of their legal representation. Revisionists urge lawyers to
contract more explicitly about the terms of their employment with their clients,
disclose more information to their clients and perhaps even adopt an informed
305
consent doctrine similar to that used in medical malpractice. The concern for
revisionists appears to be in ensuring that lawyers act in accordance with
preserving the public interest and confidence in the legal system.
In the context of this thesis, it would seem that if a client is directly involved in
his or her case, there is a lesser chance of deception being used, whether in
negotiations or otherwise. However, scholars such as Lerman seem to doubt that this
model will address the fundamental and pervasive conflict of interest [that] exists
306
between the lawyer and client the lawyers profit motivation. If the engine that
307
drives the machine is profit, and that profit comes from the client whose interests
the lawyer is meant to serve, then it would seem that this would automatically lead to
the lawyer having a greater loyalty to the clients interests at some expense to his
duty of loyalty to the court or the public interest. This is also further complicated by
the fact that the traditional model of lawyer-client relationships, upon which the
regulatory codes are based, fails to acknowledge anything but a unity of interest
308
between lawyer and client. This perceived unity of interest seemingly binds the
lawyer to the client to the extent that the lawyer may be forced to act in ways that are
contrary to the legal ethics codes of conduct and to the detriment of the lawyer if
those behaviours are deemed to be unethical.
305
306
307
308

In summary, both the traditional and revisionist model of lawyer-client
relationships appear to co-exist today. Each might affect the degree to which
lawyers feel the need to use deception in negotiations.
To date, this chapter of the thesis has presented a theoretical framework that
establishes the underlying foundation necessary to answer the research questions
identified in Chapter 1. This underlying foundation consists of a discussion on the
various theories of law, ethics, negotiation, deception, and lawyer-client relationships
which may impact the use of deception as a negotiation strategy. The next section
establishes the conceptual framework for the study undertaken in this thesis.
2.4 CO4CEPTUAL FRAMEWORK
A conceptual framework is derived from the ideas, constructs, and facts
309
surrounding the study. A conceptual framework may be defined as the
relationship among the factors, constructs, or key variables in the enquiry....
310
[that allows] you to identify a model of what you believe is happening.
The conceptual framework developed here is based on the exploration of the
relationship between the key variables underlying the research questions defined in
Chapter 1. These key variables include legal negotiation, legal ethics, lawyers, generally
accepted negotiation processes, and bargaining ethics. I postulate the following with
regard to the relationship between these key variables: 1) lawyers are trained to believe
that the legal ethics codes of the profession guide their professional lives; 2) lawyers
recognise that negotiation is a key, every-day skill necessary for
309
Calabrese, above n 14, 24.
310
Calabrese, above n 14, 24 (citing Gnter Krumme, Economic geography: Toward a conceptual
framework (2002) <http://faculty.washington.edu/krumme/guides/researchguide.html> at 9 August 2010;
Matthew B Miles and A Michael Huberman, Qualitative data analysis: An Expanded Sourcebook (2nd ed,
1994).

10
being successful and effective; 3) the negotiation process, in general, is based
on centuries-old conventions consisting of pre-defined bargaining ethics and
rules, most of which condone some form of deception; 4) when lawyers
negotiate, they do so using generally accepted negotiation conventions because
the professional ethics codes, charged with providing guidelines on lawyer
conduct in practice, are silent or ambiguous on the behaviour of lawyers as
negotiators and on the legal negotiation process in general.
Therefore, the likelihood of lawyers being deceptive in negotiations is greater
than it would be if both the legal ethics codes and, to some degree, legal education
were explicit in their recommendations, condemnations, or expectations of how lawyers
should or must act in their role as negotiators within the legal profession. While there is
a relatively consistent link between negotiation behaviour and negotiation ethics in the
business arena, the legal arena is virtually and consistently silent regarding the nature
and application of professional ethics codes to negotiation behaviour. In light of this gap
in regulation, lawyers, consistent with being practitioners in the business of law, appear
to utilise conventional negotiation tactics such as deception. In so doing, lawyers are
likely in violation of the professional ethics codes to which they are subject as members
of the profession of law.
2.5 SY4THESIS OF LITERATURE REVIEW
The purpose of this section is to present the current state of knowledge in
some key topics as determined by the problem statement and research questions. The
synthesis of the literature review attempts to identify patterns, themes, common findings
and arguments, and gaps in an effort to identify where the research supports

10
or does not support existing theories or raise questions as they relate to this
thesis and the research questions.
In the context of this thesis, this critical analysis of the literature focuses
primarily on empirical research that may have been conducted in each area.
311
Empirical research, in the context of this review, means a formal study
conducted on a given topic or issue relevant to this thesis, the results of which
are published in a scholarly journal. Scholarly publications which do not consist
of discussion on empirical research findings are also considered in a given area
to the extent that they support the focus of this thesis.
The discussion of the current state of knowledge in the focus areas of this thesis
begins with an introduction to the nature of conducting research on negotiation practice.
The introduction is followed by a synthesis of the current research on topics such as
deception, legal negotiation, legal ethics, lawyers bargaining behaviour, and lawyers
bargaining ethics. Next, this section provides a critical analysis of existing research,
identifying strengths, weaknesses, and gaps in the literature as well as how this thesis
attempts to address any identified gaps in existing knowledge.
2.5.1 Introduction
Research into negotiation is at once fascinating and difficult for several
reasons. Negotiation is ubiquitous and surpasses the realm of legal negotiations
into each persons daily lives. In some ways, we are always negotiating. Negotiation
takes on deeper significance when it enters into such realms as family, commercial
or legal transactions because of the seriousness of the transaction and its potential
311
Note: A formal study consists of following empirical research protocols such as identifying
hypotheses, research methodology, sample participants, data collection, data analysis, and results
and conclusions. See, eg, Barry Gower, Scientific method: An historical and philosophical introduction
(1997); Cresswell, above n 15.

10
implications both on the economic aspects of the negotiation as well as the
impact on the relationship between the parties. However, determining what
actually happens in negotiations is difficult because of the very nature of the
negotiation process and its characteristics.
First, negotiation is a private process and it is the tension between these
private and public realms of negotiation, especially for lawyers, that is both the
reason for its success as a dispute resolution process and its current scrutiny.
The scrutiny comes from concerns that negotiation as a private process may
collide with a legal practitioners other imposed duties of candour and ethical
312
conduct. Many argue that privacy is an essential component of good
313
negotiating. Advantages of the privacy of negotiations include the ability to
test ideas or aspects of an agreement before they are fully accepted, exploring
alternatives or testing alternatives, allowing parties to change their negotiating
positions without fear of recrimination, and enabling parties to use, even create,
314
their own subtle communication processwithout losing face.
Second, because of the privacy of negotiation, public knowledge depends on
what negotiators are willing to tell the public. This information may not be entirely
reliable because of problems of faulty memories, self-serving biases, the apparent
need to show superiority to the other side and frequently to ones own teammates, and
other incentives and posturing that tend to cloud the objective reality of a given
312
See, eg, Benjamin, above n 6 (describing negotiation has historically being seen as a sign of
weakness, preferred by the faint of heart, a con game, and carrying a taint of being immoral and
sinful.)
313
David Matz, How Much Do We Know About Real Negotiations? in Peter Carnevale and Carsten K W de
Dreu (eds), Methods of Segotiation Research (2006) 24.
314
Matz, above n 313, 24.

315
negotiation, especially if it is ongoing. In addition, the subtlety of communications
inherent in negotiations, such as body language, tone of voice, energy levels, context,
and environment are all factors which are not readily subject to objective analysis in
316
order to study negotiation behaviours. Thus, most scholars and journalists have no
direct access to what occurs in negotiation, important documents may be misleading or
missing, an eye witness participants/reporters have numerous incentives to distort their
317
reportsand inconsistencies in such reports are frequent.
From an academic standpoint, scholars such as Hollander-Blumoff argue that
there are institutional and methodological obstacles to research in legal negotiation in
318
particular. These obstacles are due in part to the nature of law and traditional legal
research, which typically involves a review of legal opinions, statutes, and articles
written by law professors, resulting in law review articles which generally offer [] the
319
authors theoretical vision of a legal issue. Empirical research may lack the
force of law such that it may seem safer to rely on controlling authority such as
statutes and cases which have greater weight and force than empirical research.
Institutional obstacles into research pertaining to the legal negotiation
process or behaviours include the following: 1) there is a fundamental difference in
how lawyers are trained in their profession from how they might view social science
research and, for example, how social scientists are trained; 2) legal academia
often lacks proper training in empirical research in order to carry out valid empirical
analysis; 3) empirical research is generally not the basis of legal training nor is it
315
316
Ibid.
317
318
Rebecca Hollander-Blumoff, Legal Research on Negotiation in Peter Carnevale and Carsten K W de
Dreu (eds), Methods of Segotiation Research (2006) 307, 312-313 (defining empirical as involving a
systematic collection and analysis of data using social science methodology.).
319
Hollander-Blumoff, above n 318, 307.

320
highly valued within legal academia; and 4) because legal academics do not
consider themselves students of social behaviour, there is a basic mistrust in
relying on empirical data much less in understanding and evaluating how to
321
use empirical research in the course of their occupation. These institutional
obstacles appear to be changing as more legal academics start to recognise
the value of sound, practical empirical research as complementing and
informing traditional theoretically-based legal research.
From the standpoint of methodological obstacles, the study of legal
322
negotiation poses some interesting challenges. For example, confidentiality
and attorney-client privilege may prevent full disclosure by practitioners who are
asked to discuss their negotiation behaviours, even with a guarantee of
confidentiality by researchers. In addition, there are issues of selection bias,
which may affect the degree to which a random and unbiased sample is used in
a study that yields objective and reliable data. Finally, there are issues of internal
and external validity affected by a legal practitioners self-interest in participating
in a study as well as the methodology used for data collection and analysis. For
example, strictly anecdotal data from a non-random group of study participants
may not be considered statistically significant in terms of proving validity and
323
generalisability so as to render the results worth of adding value.
320
Hollander-Blumoff, above n 318, 313-314 (discussing Epstein & King (2002)s reporting findings based on
review of legal empirical research and finding that many of the legal articles that discussed empirical studies
violated many of the methodological principles of social science research including validity, replicability,
reliability, and measurement).
321
Hollander-Blumoff, above n 318, 313-314.
322
Hollander-Blumoff, above n 318, 314-318.
323
See, eg, Korobkin, above n 37, 327. (The greatest shortcoming of empirical observation is that it is difficult
to generalize the findings of an empirical study to novel situations.).

A final obstacle to legal negotiation research worth noting is the perception
that negotiation and thus research into legal negotiation does not receive the
serious attention within legal academia so as to attract sufficient funding for
324
necessary and valuable research. For many of the reasons previously
discussed, including the unresolved nature of the legal negotiation process as
perhaps a distinct dispute resolution process, legal negotiation may not be
considered an area ripe for research, further analysis, and funding simply because
of its complex intersection with law, ethics, and other disciplines.
Despite these arguable challenges, there have been attempts at both
theoretical and empirical research in the areas of legal negotiation, ethics, and
deception that I consider relevant to this thesis. This current state of knowledge
and research is discussed briefly below in groups of key topic areas. For
example, to understand whether lawyers engage in deceptive behaviour and
whether this behaviour is considered unethical or impacts negotiations, it is
important to review and understand research related to deception and lying. To
determine whether the legal ethics codes are effective in regulating potentially
deceptive behaviours in negotiation, an understanding of research on legal ethics
as well as how lawyers behave during negotiations is crucial. The next sections
will summarise the literature relevant to answering the research questions. The
review of literature is followed by a critical analysis of the research, its findings,
and its relationship to the research questions presented in this thesis.
324
See, eg, Matz, above n 313, 24-31 (discussing some of the reasons why research into
negotiation is hard and therefore may determine the extent to which legal academia may fund
such research). Note: I do not necessarily agree that valid and empirically based research cannot
be done in the area of legal negotiation; however, legal negotiators do have ethical constraints
which may prevent the ability to get relevant, quantifiable, and generalisable empirical data. This
means particular attention must be paid to using appropriate, reliable research methods.

2.5.2 Research About Deception/Lying
Deception in negotiation may be common because of two primary factors: 1)
325
asymmetrical information that is generally a common feature of negotiations; and
2) the difficulty that most people face in detecting deception which makes it easier
326
to mislead others. For example, research has found that very few untrained
327
people can detect lies. In addition, people are generally overconfident in their
328
ability to deter lies which may result in even greater misunderstandings about the
extent of deception that occurs in negotiations.
To aid in better understanding and detecting deception, social science as
well as negotiation researchers have developed taxonomies about lies and certain
deceptions. DePaulo et als taxonomy of lies is classified according to content,
motivation, magnitude and referent (i.e. whether the lie is about the liar, objects,
329
another party or event). Lewicki and Stark identified eighteen (18) ethically
questionable negotiation tactics, categorised them into five appropriateness
categories and then analysed how subjects within their study would rate these
325
Hawker, above n 26, 35 (defining asymmetrical as lacking symmetry; synonymous with uneven,
unbalanced, and irregular). In the context of negotiation, information may be considered asymmetrical
because of how much accurate information is exchanged, or how it is interpreted by the lawyer or mediator or
other key stakeholder and how this information is perceived or received by the other. In the case where the
negotiation is facilitated by a third party, such as a lawyer or a mediator, the chance of asymmetrical
information is greater because there is little direct communication. Even if there is direct communication
between the negotiating parties, heuristics and biases might impact the facts.
326
Maurice E Schweitzer and Rachel Croson, Curtailing Deception: The Impact of Direct Questions on Lies
and Omissions (1999) 10(3) The International Journal of Conflict Management 225, 226.
327
See, eg, P J DePaulo, Research on deception in marketing communications: Its relevance to the study of
nonverbal behaviour (1988) 12 Journal of Sonverbal Behavior 253-273; P Ekman and W V Freisen,
Detecting deception from body or face (1974) Journal of Personality and Social Psychology 288-298; P J
DePaulo and B M DePaulo, Can deception by sales persons and customers be detected through non-verbal
behavioral cues? (1989) 19 Journal of Applied Psychology 1552-1577; P Ekman and M OSullivan, Who can
catch a liar? (1991) 246 American Psychologist 913-920.
328
See, eg, Ekman and OSullivan, above 327, 913-920.
329
See B M DePaulo, D Kashy, S E Kirkendol, M M Wyer, and J A Epstein, Lying in everyday life (1996) 70
Journal of Personality and Social Psychology 975-995.

10
330
tactics.
Certain forms of lies and deception were part of this list. In addition,
331 332
Rivers leveraged the work of Lewicki and Robinson et al to create a new inventory
of ethically ambiguous negotiation tactics (EANTs) called the HAATTIN (How Appropriate
Are These Tactics In Negotiation) inventory based on a review of business ethics
333
literature including deceptive communication literature and workplace deviance
334
literature. This inventory categorizes 24 items (tactics) under eight (8) types of
335
EANTs. These eight types are: 1) withholding information from the other party; 2)
making promises that are not sincere; 3) threatening the other party; 4) using or saying
untruthful information but not as a threat or as a promise; 5) using positive feelings
toward the other party; 6) using negative emotions/feelings toward the other party; 7)
intentionally unsettling or wearing the other party down but not by threats or by lying; and
336
8) diverting attention of the other party away from the current negotiations. Types 1
and 4, in particular, concern lies of omission and lies of commission, respectively, when
337
reviewing the specific behaviours under these types. In addition to the taxonomies
presented above, there are several studies on deception worth noting as they help to
explain the extent to which lawyers may use
330
See Roy J Lewicki and Neil Stark, What is ethically appropriate in negotiations: an
empirical examination of bargaining tactics (1995) 9(1) Social Justice Research 69-95.
331
See generally Rivers, above n 77. This study was to rate the appropriateness of each of the HAATTIN
inventory of ethically ambiguous tactics by a total of 135 Australian business contacts of the researcher.
The research is continuing.
332
R J Robinson, R J Lewicki, and E M Donahue, Extending and testing a five factor model of ethical and
unethical bargaining tactics: Introducing the SINS scale (2000) 21(6) Journal of Organizational Behavior 649-
664 (developed a typology of EANTs called the SINS (Self-reported Inappropriate Negotiation Strategies)
scale. The SINS scale consisted of 16 items sorted into 5 types of tactics. The five types of tactics were: 1)
traditional competitive bargaining; 2) attacking an opponents network; 3) false promises; 4)
misrepresentation/lying; and 5) inappropriate information gathering.)
333
Rivers, above n 77, 11 (citing S A McCornack, Information manipulation theory' (1992) 59(March)
Communication Monographs 1-16.
334
Rivers, above n 77, 11 (citing S L Robinson and R J Bennett, A typology of deviant workplace behaviors:
A multidimensional scaling study (1995) 38(2) Academy of Management Journal 555-572;
E D Scott and K A Jehn, Ranking rank behaviors (1999) 38(3) Business and Society 296-325.
335
Rivers, above n 77, 11.
336
Ibid.
337
Ibid.
2010 Avnita Lakhani
deception in practice, how to manage deceptive behaviour, and whether
deception can effectively be regulated.
In 1999, Schweitzer and Croson published the findings of their research
338
on curtailing deception. Their research involved determining whether direct
questions would assist in curtailing lies of commission and lies of omission. Their
research has some relevance in this study because of the variables tested and
results obtained regarding the intersection of ethics and deception. Schweitzer
and Croson conducted two studies, which are discussed briefly below.
Study 1 involved a self-reported questionnaire where subjects were asked to
assume the role of the seller of a used car, one that has a transmission problem that
needs work but does not require immediate attention. Study 1 consisted of eighty (80)
339
graduate students recruited from different universities in southern United States.
Participants were asked to complete one of four versions of a self-reported
questionnaire. A total of twenty (20) subjects completed each of the four
340
versions of the questionnaire. Subjects were asked how likely they were
to reveal the transmission problem to a friend and to a stranger who asks or
341
does not ask about the mechanical condition of the car.
Schweitzer and Croson made three primary assumptions along with four
hypotheses in this first study. Their assumptions are worth noting here because
they expected that subjects who are asked a direct question to be less likely to use
342
deception than subjects who are not asked direct questions. Their assumptions
338
See generally Schweitzer and Croson, above n 326, 225-228.
339
Schweitzer and Croson, above n 326, 230.
340
Ibid.
341
342
Ibid.
were: 1) people can choose to either lie by omission, lie by commission, or reveal the
truth; 2) most people would rather lie by omission than lie by commission given prior
work in this area that showed that most people would judge lies by commission more
343
harshly and seriously than omissions; and 3) direct questions force people to
articulate a response and chose between telling a lie by commission and revealing the
344
truth.
Along with the three assumptions above, Schweitzer and Croson made
four hypotheses, one of which considered the role of ethics and whether ethics
345
education has an impact in curtailing deception. Specifically, Schweitzer and
Crosons third hypothesis was that subjects who have taken a course in ethics
will be less likely to use deception than those who have not taken a course in
346
ethics. The results regarding this hypothesis may be particularly relevant in
determining whether the legal professions ethics codes, in particular its
prohibition against deceptive or misleading practices, combined with a
professional ethics courses in law school have any bearing at all on reducing
the seemingly ubiquitous practice of deception in negotiations.
As to the results of Study 1, the average respondents age was 26.6 years old
347
and 65% of the respondents were male. There were no significant differences in the
348
results along gender lines. Across all treatment conditions and all responses,
343
Schweitzer and Croson, above n 326, 228 (citing M Spranca, E Minsk, and J Baron, Omission and
commission in judgment and choice (1991) 27 Journal of Experimental Social Psychology 76-105.
344
345
Schweitzer and Croson, above n 326, 229 (discussing the possible role of ethics and ethical
education in curtailing the use deception)
346
Schweitzer and Croson, above n 326, 229; See also R F Duska, Whats the point of a business ethics
course (1991) 1 Business Ethics Quarterly 333-354; T Jones, Can business ethics be taught: Empirical
evidence (1989) 8 Business and Professional Ethics Journal 73-93.
347
348
Ibid.
10
only 6 respondents (7.5%) said they would tell a prospective buyer about the
transmission problem regardless of being asked or not and regardless of whether the
349
person was a stranger or friend. This appeared to show that a substantial majority of
350
respondents might mislead a prospective buyer in certain circumstances and the
motivation appeared to be based on self-interest (i.e. a financial gain).
Schweitzer and Croson found that, on average, respondents were most
likely to reveal the mechanical problem to friends who asked, next most likely to
reveal to friends who did not ask, third most likely to reveal to strangers who asked,
351
and least likely to reveal to strangers who did not ask. The finding that friendship
mattered appears consistent with studies that contextual factors such as
352
relationships affect a negotiators propensity to lie and that friends are held more
353
responsible than strangers because of greater consequences to friends such as
harming the relationship, disturbing the social network, and incurring feelings of guilt
354
or remorse even if the lie is not detected or found out.
Schweitzer and Croson also found that there were no differences between the
responses of the 42 (52.5%) subjects who had taken an ethics course and those of the
355
38 (47.5%) subjects who had not taken an ethics course. While those who had taken
an ethics course were less likely to lie, the difference was not statistically significant to
conclude that ethics education will necessarily curtail deceptive conduct
349
350
Ibid. This is consistent with the natural inclination of human nature to protect ones self-interest and achieve
the greatest gain.
351
352
Schweitzer and Croson, above n 326, 227 (citing the works of R A Maier and P J Lavrakas, Lying
behavior and the evaluation of lies (1976) 42 Perceptual and Motor Skills 575-581; J Haidt and J Baron,
Social roles and the moral judgment of acts and omissions (1996) 26 European Journal of Social
Psychology 201-218).
353
354
Ibid.
355

356
in negotiation. This finding is important when reviewing the policy
reform proposals in Chapter 7.
Schweitzer and Crosons Study 2 did not involve self-reported
questionnaires but consisted of a face-to-face negotiation experiment
involving the sale of a used computer with a faulty hard drive.
A total of 148 student-participants were recruited for this study. Participants
were recruited from two different schools of business in the United States. One
hundred (100) subjects were recruited from a large eastern university and 48
357
subjects were recruited from a large southern university in the United States. To
minimize certain biases or preconditioned responses, the subjects were recruited
during their first week of starting university and before participants could form strong
358
relationships or reputations or have significant education in negotiation.
Participants were randomly paired and assigned to the role of either buyer
or seller and given twenty minutes to prepare for the negotiation.
In Schweitzer and Crosons second study, the seller knows about the problem
with the computer and also knows that the buyer is unaware of the faulty hard drive
359
issue. Schweitzer and Croson used three treatment conditions (strong, moderate,
and weak) which were intended to influence the number of questions used by the buyer-
subjects when enquiring into the sale of the computer. Finally, because of the face-to-
face aspect of the simulated negotiations, Schweitzer and Croson were able to
356
Schweitzer and Croson, above n 326, 231. It would be interesting to determine whether this is consistent
with the greater impact of community ethics or even pragmatism over rules and principles. See also Mark
Victor Hansen, Cracking the Millionaire Code: Your Key to Enlightened Wealth (2005)
272 (Mr Hansen is speaking with the father of a very bright and industrious six year-old and states:
Mr Tighe, every kids born honest, ethical, and moral. They have to be taught to be crooked and go
side ways. I dont think we have to worry about Tommy. Kids all pay back with interest.)
357
358
Ibid.
359

observe whether seller-subjects would lie about the information (lies of
commission), conceal the information (lies by omission), or reveal the
360
information to the prospective buyer-subjects. Negotiations were audio-
taped and coders analysed the audio recordings and measured the impact of
361
direct questions on deceptive behaviour.
During the second study, Schweitzer and Croson had three primary
hypotheses: 1) seller-subjects are more likely to reveal a material problem when asked a
362
direct question than when not asked; 2) seller-subjects are less likely to lie by
363
omission when asked a direct question about a material problem; and 3) seller-
364
subjects are more likely to lie by commission when asked a direct question. In other
words, Schweitzer and Croson expect[ed] deception to be more prevalent when buyers
365
do not ask a direct question. If a buyer asks direct questions, the seller will either
reveal the problem (i.e., tell the truth) or lie about the information (lie by commission). If
the buyer does not ask direct questions about the problem, the seller will either reveal
366
the problem or conceal the information (lies by commission).
In Study 2, of the 148 subjects recruited to participate, all the
participants completed the exercise. The average age of the participants
367
was 25.3 years old with 2.9 years of full-time work experience. Males
368
accounted for 66.9% of the participants.
360
361
Ibid.
362
363
Ibid.
364
365
366
Schweitzer and Croson, above n 326, 236 figure 6.
367
368
Ibid.

In analysing the results of Study 2, Schweitzer and Croson did not find any
statistically significant differences between the two university populations across the
369
measures and outcomes. Their findings confirmed all three of their hypotheses,
namely: 1) sellers were significantly more likely to reveal the problem when buyers
370
asked them about the reliability of the computer then when buyers did not ask; 2)
371
sellers were more likely to lie by omission when not asked a direct question; and
3) sellers were more likely to lie by commission when they were asked a direct
372
question than when they were not so asked. Schweitzer and Croson found that
none of the sellers revealed the problem on their own and even volunteered lies of
373
commission. This aspect of the results is interesting in the sense that sellers
were in a typical bargaining scenario where they had more information and could
gain a greater financial advantage at the expense of the buyer by actively using
deception even when not necessary. This was compounded by the voluntary lies of
commission where self-interest and financial incentives encouraged a competitive
nature on the part of the seller that lead to greater lying.
While Schweitzer and Crosons study involved mainly business students,
Lermans study is relevant to the issue of deception in the legal profession. In the late
1980s, Lerman conducted an informal study of legal professionals in the United States to
374
probe the fabric of daily law practice to identify common types of deception.
Lermans informal study consisted of identifying whether lawyers deceived clients and
the ways in which such deception occurred. The subject-participants in Lermans
369
Ibid.
370
371
Ibid (meaning that the seller either avoided the topic or said nothing).
372
373
Ibid.
374
Lerman, above n 60, 703-704.

study consisted of twenty (20) lawyers in the United States who engaged in civil practice
at various levels, including small firms, large firms, local practice and national practice.
The subjects were not randomly chosen and were part of Lermans personal network. In
addition, while the sample size was not statistically significant, the lawyers represented
a diverse spectrum of educational backgrounds, including national, regional, and local
375
law schools and none of the lawyers had ever been professionally disciplined at the
376
time of their participation in the informal study.
Lerman used an in-person interview method whenever possible. In some cases,
where in-person interviews were not practical, Lerman conducted phone
377
interviews. Each lawyer was asked to talk [] about specific instances in which
378
she [or he] had deceived a client or had seen another lawyer do so. Each
lawyer was also asked whether the lawyer thought the conduct was justifiable
379
and why. Lerman reported the stories in narrative form so as to keep the
results more real and close to actual law practice.
The results from Lermans interviews suggested that lawyers most frequently
380
deceive their clients for economic reasons. Lerman described the economic
benefits as being either direct (as when a lawyers intention in deceiving was to
obtain income) or indirect (intended to protect or promote the lawyers professional
381
reputation or that of the lawyers firm). Lerman also concluded that the primary
reasons why lawyers deceived clients, which she termed as self-interested
375
376
Ibid.
377
Ibid.
378
Ibid.
379
Ibid.
380
381
Ibid.

382
deception, fell into six broad categories: 1) billing; 2) bringing in business; 3)
covering up mistakes; 4) impressing clients; 5) convenience and control of work
383
and time; and 6) impressing the boss. In analysing the anecdotal data, Lerman
identified some patterns with regards to the lawyers reported deceptive conduct.
First, lawyers reported pervasive deception in the area of client billing,
384
which in some cases involved large amounts of money. Second, there were
numerous examples of deception concerning the extent of the lawyers own degree
385
of expertise in a given area or the expertise of the firm. Third, the most reported
deception was about mistakes made in the course of representing clients, efforts to
correct the mistake and whether to charge the client for the time and effort to correct
386
mistakes. Finally, the findings showed countless deceptions by lawyers designed
to manage the work load and time, for the lawyers convenience, and to create
387
particular impressions on clients and partners alike. Lerman concluded that
[l]awyers deceive their clients more than is generally acknowledged by the ethics
388
codes or by the bar. Citing the American Bar Association 1985 statistics on
389
lawyer misconduct for deception, Lerman argues that it shows how few lawyers
390
are disciplined by the existing regulatory system.
382
See Susan Saab Fortney, Soul for Sale: An Empirical Study of Associate Satisfaction, Law Firm Culture,
and the Effects of Billable Hour Requirements (2000) 69 University of Missouri-Kansas City Law Review 239
(concurring with Lermans findings with regards the impact of billable hours).
383
384
385
Ibid.
386
Ibid.
387
Ibid.
388
389
Lerman, above n 60, 702 (citing the American Bar Association disciplinary action statistics of 1985 in
which the offense of general misrepresentation accounted for five percent of all disbarments (22 cases), six
percent of all suspensions (38 cases), and four percent of all public reprimands (13 cases).
390

10
While there may be numerous views and research into deception and lying,
391
Lee et als 2001 empirical study on lying is worth discussing because of its
potential implications for understanding the use of deception from a cross-cultural
392
standpoint. The focus of the study was a comparative analysis on children and
lie-or truth-telling in Taiwan, mainland China, and Canada. However, Lee et als
2002 study is worth noting and important for three main reasons.
First, while the study did not involve adults, legal practitioners or students, the
results may shed some light on how legal practitioners from differing legal
jurisdictions develop their initial ethical framework and how they may view and
contend with perceptions of lying in their potentially differing socio-cultural legal
jurisdictions, either before entering legal education or during the course of practice.
Second, this study is important in understanding how legal education and the legal
profession can better educate incoming law students and practitioners with regards
to professional ethics codes and managing ethical dilemmas. This second aspect is
also relevant to the policy reform proposals discussed in Chapter 7. Finally, this
study may also shed light on how the social ethics of a culturally diverse legal
jurisdiction might affect the legal ethics imposed on practitioners of that jurisdiction.
Lee et al undertook their study of childrens moral judgment of lie- and truth-
telling due to two main reasons. First, they felt that nearly all current research, except for
393
one, was restricted to using Western children as subjects and thus likely the result of
perspectives based on Western principles. Because of this, it was unclear
391
See generally Lee et al (2001), above n 72, 525-542.
392
Note: the legal profession could be considered a culture and, therefore, this study provides some
insight on the influences and pressures of conforming to the legal cultures expectations.
393
Kang Lee et al, Chinese and Canadian childrens evaluations of lying and truth-telling (1997) 64 Child
Development 924-934. The 2001 study was a follow on to this 1997 study.

whether the findings with Western children can be generalized to children of other
394
cultural backgrounds who may be raised in different moral-ethical traditions.
Second, Lee et al wished to address the important philosophical debate between
395
two opposing viewsabout the moral values of lying, namely the deontological
view and the social-conventional views discussed earlier in this chapter.
Lee et als 2001 study extended the findings of Lee et als 1997 study in which
Canadian and mainland Chinese children were asked to evaluate verbal statements
made in the context of childrens stories where the child character performed either a pro-
396
social or anti-social deed. Lee et als 1997 study found that there were no cultural
differences in the childrens evaluation of a lie or truth told in an anti-social deed
397
situation. In other words, both Canadian and mainland Chinese children were able to
distinguish consistently between whether the child character told a lie or the truth in an
398
anti-social deed. However, in a pro-social deed situation (i.e. where the child acts in a
socially positive way), Lee et als 1997 study found that Chinese children rated truth-
telling less positively and lie-telling more positively than Canadian children [and] this
399
difference increased with age. Lee et als 1997 study suggested that the cultural
differences in the findings may be due to the Chinese cultures emphasis on self-
effacement and modesty such that [a]s they become increasingly acculturated the
emphasis on modesty leads Chinese children to believe that lying for self-effacement has
high moral values, whereas truth-telling about good
394
Lee et al (2001), above n 72, 526-527.
395
Ibid.
396
Lee et al (2001), above n 72, 527 (a pro-social deed is one that would be considered favourably by
society and an anti-social deed is not seen favourably by society, citing Kang Lee et al (1997), above n
393).
397
Lee et al (2001), above n 72, 527.
398
Ibid.
399
Ibid.

400
deeds may be undesirable. This was different from the Canadian
childrens views where it appears that truth-telling about good deeds has just
as much high moral value as truth-telling about bad deeds.

401
To account for several perceived limitations of the Lee et als 1997 study
as well as to extend and confirm the research findings, Lee and his colleagues,
during the 2001 study, used the same method as used in Lee et als 1997 study with
two modifications. These modifications included increasing the sample size to take
into account Taiwanese children and asking the children to categorize a particular
402
truthful and untruthful statement as either a lie or the truth.
The subjects of the 2001 study were children from Taiwan, mainland China
and Canadian, aged 7, 9, and 11 years old. A total of 233 children participated with
the following distribution between countries: 1) 90 male and female Taiwanese
children; 2) 60 male and female mainland Chinese children; and 3) 83 white male
403
and female Canadian children. Canadian children were intended to represent a
Western sample with ideas of rights and individualism. While both Taiwanese and
mainland Chinese children represent the Eastern values and are collectivist
societies, Lee and his colleagues considered that collectivist values from Taiwan
come directly, and without interruption, from Confucianism whereas mainland Chinas
404
collectivist values are a blend of Confucianism and communism.
Lee et als 2001s study focused on whether these collectivist values would
make a difference in the studys results with regards to the moral value of truth-telling
400
Ibid (discussing Lee et al (1997), above n 393).
401
Lee et al (2001), above n 72, 528 (discussing the limitations of the Lee et al (1997) study).
402
Ibid.
403
Lee et al (2001), above n 72, 529.
404
Lee et al (2001), above n 72, 536.

and lie-telling. In addition, both Taiwan and mainland China have different political and
405
economic policies despite their close geographic proximity, with Taiwan having
increased infusion of Western cultural values and practicesinto [their] everyday
406
lives. Finally, there is a difference in the political-moral education program in
mainland China versus in Taiwan. In mainland China, honesty and modesty are among
the major Five Virtues that are strongly emphasized in the school curriculumpromoted
explicitly as early as kindergarten.and are used by teachers as central criteria to
407
assess childrens school comportment. In Taiwan, honesty has always been
408
promotedand children are taught explicitly not to lie from Grade 1 if not earlier
However, modesty has not been emphasized explicitly in the moral education
409
curriculumand teaching modesty is no longer a requirement.
Children involved in the 2001 study heard two sets of four brief stories.
Each story set consisted of two stories where a child character did a good deed (a
410
deed valued by adults in all cultures involved). The other set of two stories
consisted of a child who did a bad deed (a deed viewed negatively in all cultures
411
involved). The stories were a combination of social stories (ones which affect
405
Lee et al (2001), above n 72, 536 (describing Mainland China as a centralized one-party political
system (referred to as proletarian dictatorship by the governing Communist Party) and a socialist market
economy and Taiwan as a multi-party democracy[and a] capitalist free-market system influenced by
Western models)
406
Lee et al (2001), above n 72, 536 (citing K S Yang and H Y Chiu (eds) Taiwanese society in
transition (1987)).
407
Lee et al (2001), above n 72, 536 (citing Lee et al (1997), above n 393, 924-934; R
Price, Moral-political education and modernisation in R Hayhoe (ed) Education and
modernization: the Chinese experience (1992) 211-238.
408
Lee et al (2001), above n 72, 537.
409
Lee et al (2001), above n 72, 537 (citing the National Publishing House 1977 and 1997 guidelines as
indicating that the Taiwan Ministry of Education revised its guidelines with regards to teaching modesty but did
not revise the guidelines with regards to teaching honesty.); See also National Publishing House: Taiwan,
Guidelines for moral and health education (1977); National Publishing
House: Taiwan, Guidelines for moral and health education (1997).
410
Lee et al (2001), above n 72, 528-529.
411
Ibid.

412
another child) and physical stories (ones that only involve physical objects).
The researchers read the story to the subject-participants and asked the children
whether they thought that the statement made by the child story character was a
lie or not a lie (the categorization question) and whether they thought the story
413
characters statement was good or bad (the moral evaluation question).
With regards to expected results, Lee and his colleagues expected to see
the following results: 1) that Chinese children would not label untruthful
414
statements made in pro-social deed situation as a lie; 2) that Taiwanese and
Mainland Chinese children were predicted to rate truth-telling in pro-social deed
situations less positively, and lie-telling in the same situations less negatively,
415
than Canadian children; and 3) that all children would rate lie-telling
416
negatively and truth-telling positively in anti-social deed situations.
The results of the 2001 study confirmed the majority of the findings from
Lee et als 1997 study. In the 2001study, Lee and his colleagues found that all
children (Taiwanese, mainland Chinese, and Canadian) shared the same basic
417
categorization of lie- and truth-telling as related to the categorisation question.
In other words, when asked to categorise a particular statement as a lie or not a
lie, all the child-participants were able to correctly and consistently distinguish
between statements that were considered a lie or a truth regardless of whether
the statement was made in a pro-social or anti-social deed situation.
412
Lee et al (2001), above n 72, 528-529.
413
Ibid.Note: The results of the moral evaluation question is relevant to this thesis in assessing how ethics
codes are viewed and the impact of morals and values in curtailing certain socially undesirable
behaviours such as deception.
414
Lee et al (2001), above n 72, 529.
415
Ibid.
416
Lee et al (2001), above n 72, 529.
417
Lee et al (2001), above n 72, 536.

With regards to the moral evaluation question, the findings of the 2001 study
also confirmed the modesty effect that was found in the Lee et als 1997 study in
which Chinese children increasingly (as age increased) gave less positive ratings to
418
a story character who does something good and tells a teacher about it. This
modesty effect appears to exist even in Taiwanese children since, as the age
increased, Taiwanese children also rated less positively truth-telling about ones own
419
good deed while giving more positive rating to lying about a good deed.
Lee and his colleagues questioned the children regarding a justification for their
responses to the moral evaluation question and found that Chinese childrens [Mainland
China and Taiwan] justification for giving less negative and more positive ratings to lying
in pro-social situations and the reverse to truth-telling in similar situations tended to be
420
modesty-related, consistent with Lee et als study in 1997.
This led Lee and his colleagues to conclude that perhaps the deontological
view of the constant and intrinsic positive value placed on truth-telling and the
negative value placed on lie-telling was incomplete given the similarity in
results between Mainland Chinese and Taiwanese children.
Lee et als 2001 study suggests that like many other cultural values and
practices, modesty-related values and behaviours may be modelled and taught implicitly
421
by teachers, parents and other socializing agents. This implicit teaching of certain
values and behaviours is particularly relevant to the legal profession since the legal
ethics codes may, in many cases, be more strict than societys views of what is moral
and ethical or vice versa. At least with regards to deception, society may
418
Ibid.
419
Ibid.
420
Ibid.
421
Lee et al (2001), above n 72, 537.

condone what the legal profession appears to categorically prohibit, thus
resulting in a conflict for the ethically-minded legal professional. Furthermore, Lee
et als 1997 and 2001 study sheds insight into the notion that values such as
truth-telling and lie-telling may be learned and reinforced through various
influences and that such conduct may be modified through alternate influences.
These findings add value to the policy reform proposals outlined in Chapter 7.
In summary, this section has presented the results of research into
deception, the extent to which practitioners engage in deception and the ways in
which deception is perceived as acceptable or unacceptable behaviour. In the
context of this thesis, this research is important in establishing that the
perception of deception as permissible behaviour can be managed early in a
childs development and as the individual undergoes moral development as
explained by Kohlberg later in this chapter. Furthermore, as Lee et als study
found, designating truth-telling as a high, pro-social value can have an impact on
whether a person will use deception. As such, this research adds important
insights in light of the policy reform proposals presented in Chapter 7.
In addition to research on deception, the next section discusses some
relevant research and analysis with regards to behaviour in legal negotiation.
2.5.3 Research About Legal 4egotiation
In the context of this thesis, legal negotiation, as separate from negotiation, is
the process of negotiation as conducted by legal professionals and as constrained by
the rules, codes of conduct, court rules, and ethics codes of the legal system.
In 1983, Williams undertook one of the most extensive studies of legal
negotiation. Williams study is considered to be one of the first large-scale studies of

legal negotiation conducted by an academic on the negotiation practices and
422
behaviours of lawyers. The objective of Williams study was to explore the
negotiating patterns of practicing attorneys within the context of the legal system.
Williams used multiple methods to conduct his research. First, he used a
survey questionnaire. The survey questionnaire was sent to approximately 2,000
attorneys practicing in Denver, Colorado and Phoenix, Arizona in the United
423
States. The purpose of the questionnaire was to elicit the attorneys views on a
list of adjectives that make up a highly effective or not highly effective negotiator. A
second method was a one-hour tape-recorded interview with forty-five (45) attorneys
424
in Denver, Colorado in the United States. A third method involved video-taped
425
recordings of experienced negotiators conducting negotiations. A total of seven
cases were analysed across a range of matters including personal injury, breach of
contract, divorce, criminal law, landlord-tenant, and business transactions. Finally,
Williams used an original technique in which he asked both plaintiff and defence
attorneys in a case to keep oral, tape-recorded accounts of their actions as they
426
moved step-by-step through their cases. The results of this fourth method
included self tape-recorded accounts of more than fifty (50) pairs of attorneys in
427
Denver, Colorado and over one-hundred (100) in Phoenix, Arizona.
Williams posed several research questions, including: 1) What are the
characteristics of effective negotiators?; 2) Are there identifiable patterns to their
negotiating behaviours?; 3) What strategies do lawyers most commonly use?; 4) What
422
See generally Williams, above n 202.
423
Williams, above n 202, 15-16.
424
Ibid.
425
426
Williams, above n 202, 17.
427
Ibid.

combination of traits are found in the most effective (and most ineffective) negotiators?;
428
and 5) What are their strong points and what are their weak points?
Several results of Williams study are relevant for the purposes of this
429
thesis. First, Williams found that a majority of subject-participants exhibited one of
430
two primary negotiating patterns: cooperative (65%) or competitive (24%).
Approximately 11% of participants did not fall within these two dominant patterns.
Second, Williams concluded that the higher proportion of cooperative attorneys
(65%) who were rated effective (38%) does suggest that it is more difficult to be an
431
effective (6%) competitive (24%) negotiator than an effective cooperative one. In
essence, the results appear to indicate that lawyers who use cooperative styles of
negotiation appear to be more effective than those who adopt more competitive
negotiation behaviours even though both cooperative and competitive negotiation
styles are effective. Perhaps the most relevant and surprising result for the purposes
of this thesis is the lawyers assessment of where acting ethically ranks in the list of
characteristics of effective or non-effective negotiating styles. Williams noted the
following when he listed and compared the motivational objectives between
cooperative and competitive negotiators.
432
Table 2.3: Top Three Motivational Objectives of 4egotiators
Effective/Cooperative
Conducting self ethically
Maximizing settlement for client
Getting fair settlement
428
Ibid.
429
See generally Williams, above n 202, 18-27 (discussing the results of the study).
430
431
432
Williams, above n 202, 20 (listing the Cluster One results).

Williams points out that it is surprising to find the predominant concern is
with ethical conduct [and] [t]his theme recurs among cooperative negotiators at
433
all levels of effectiveness. Further, Williams found that the
effective/cooperative attorneys feel constrained in their conduct by a standard
434
of fairness and ethical dealing. While being ethical and honest is ranked on
the lists of both competitive and cooperative negotiators, it is ranked higher for
cooperative negotiators (at 3 and 1 respectively) than for competitive negotiators
435
(at 15 and 11 respectively). This suggests that being ethical and honest is not
as highly valued or expected for competitive, effective negotiators and thus
deception may be a natural part of this negotiating style. Williams concludes that
the results show the unbridgeable gap in perceptions and attitude between
436
competitive and cooperative attorneys.
What is interesting is that regardless of whether all attorneys are expected to
conduct themselves under the prescribed ethics codes, to never lie, and to
presumably cooperate with opposing counsel and the courts, there are still distinct
differences in what motivates attorneys during negotiations on behalf of their clients.
It seems attorneys are implicitly learning their negotiating behaviours outside the
explicit rules and codes of conduct that are meant to govern their profession.
2.5.4 Research About Legal Ethics
The purpose of this section is to present and discuss research related to legal
ethics. Prior to discussing research in the area of legal ethics, this section presents a
433
434
Williams, above n 202, 20-21 (further pointing out that while they want to know their clients needs and to
try and meet these needs without resorting to litigation, cooperative negotiators are also concerned about
maintaining a good personal relationship with opposing counsel).
435
436

10
brief discussion on Kohlbergs levels of moral development. This information is
important because, as discussed earlier, each individual who enters law school does
so with a pre-disposed idea of what is right and wrong. Kohlbergs levels of personal
moral can aid in understanding the challenges faced by lawyers in adhering to legal
ethics codes, the extent to which lawyers may understand and adhere to the
demands of the legal ethics codes in the practice of law as well as the extent to
which legal education can assist in or detract from further developing a future legal
practitioners stage of moral development. In the context of this thesis, this could
mean the ability to distinguish between using deception in negotiation and making
alternative, ethically viable choices of negotiation behaviour.
The first step towards resolving the tension between the view of a
strictly autonomous moral agent and the professional ethics obligations is to
understand Kohlbergs levels of moral development and how they can be
applied to better understand the impact of legal ethics codes and how it can
influence the future of legal education (especially legal ethics education that is
437
meant to manage attorney behaviour). Understanding Kohlbergs levels of
moral development is also important in successfully implementing the ethical
standard setting policy reform proposals in Chapter 7. The second important
precursor is to realise that, in some instances, if not all, law and morality do
438
intersect and lawyers, as professionals of the legal system, need to be able
to manage those issues which fall at the crossroads of law and morality.
437
See generally Richards, above n 28, 365-371 (proving a historical perspective of moral development and
moral psychologys key developers and discussing Kohlbergs work in detail and its relevance to legal
education).
438
See generally Honor (2008), above n 115. See also Honor, above n 115, 1.

Kohlbergs work developed from and followed the basic methodology and
research established by Piaget, a noted child development scholar. Kohlberg used
extensive samples of data, including cross-cultural samples and statistical analyses of
439
data to test Piagets findings. Instead of the two-stage moral development process
440
(ethics of authority and autonomous personal conscience) that Piaget developed,
Kohlberg postulated six stages of moral development, with each person
moving through the stages systematically and sequentially before achieving
441
higher levels of moral development. The three major levels and six
stages of moral development are highlighted below in Table 2.4.

442
Table 2.4: Kohlbergs Levels and Stages of Moral Development
Level / Stage
Level I Premoral /
Pre-Conventional (children)
Stage 1 Punishment and obedience orientation
(How can I avoid punishment?)

Stage 2 Naive instrumental hedonism
(Whats in it for me?)

Level II Morality of Conventional Role Conformity /
Conventional (adolescents and adults)
Stage 3 Good-boy morality of maintaining good
relations, approval by others
(Social norms; good-boy/good-girl attitude)

Stage 4 Authority maintaining morality
(legalism)
(Law and order morality)

Level III Morality of self-accepted moral
Stage 5 Morality of contract of individual rights
439
Richards, above n 28, 366-367.
440
Jean Piaget, The Moral Development of the Child (1962) 174, 228.
441
Richards, above n 28, 367.
442
Adapted from Richards, above n 28, 367-368; See also Lawrence Kohlberg, Moral Development in
International Encyclopedia of the Social Sciences (1968) 489-494; Lawrence Kohlberg, A Cognitive-
Developmental Approach to Moral Education (1972) The Humanist 15;

Level / Stage
and of democratically accepted law
(Social contract orientation)

Stage 6 Morality of individual principles of
conscience
(Universal ethical principles / Principled

conscience)
As seen in the table above, legalism and lawyers would tend to fall
under Stage 4 of Kohlbergs model. Stage 5 consists of only 25% of those
studied by Kohlberg while he reserves Stage 6 for only 5-10% of individuals
who could be considered cultural heroes because they achieve the integrity
of autonomous ethical individuation from their societies at the expense of
443
their lives (Socrates, Christ, Gandhi, Martin Luther King).
An important point by Kohlberg is that as individuals progress to higher stages of
444
moral development, they tend to act more ethically when faced with temptation.
People at higher stages also tend to be more honest under temptation and resist
445
outrageous and unjust orders. Of special significance is the finding from Kohlbergs
more recent studies that conclude that stage 5 is not achieved until age 23, and stage 6
446
until age 30, both of which are in the range of prime ages of professional education,
such as law school or medical school. This is specifically relevant to incoming law
students in their first year of law school who tend to fall within the 23-30 year age range.
Kohlbergs findings in relation to Stages 4, 5, and 6
443
Kohlberg, above n 442, 15.
444
Lawrence Kohlberg and E Turiel, Moral Development and Moral Education in G Lesser (ed)
Psychology and Educational Practice (1971) 456-461.
445
Kohlberg and Turiel, above n 444, 456-461.
446
Richards, above n 28, 369 (citing Lawrence Kohlberg, Continuation in Childhood and Adult Moral
Development Revisited in Lawrence Kohlberg and E Turiel (eds), Moralization, the Cognitive Developmental
Approach (1973) Chapter 45).

indicate that there is great opportunity to either cause moral development
regression or moral development progression depending on how law students are
taught the nature of legal ethics and moral reasoning. Given this background, a
review of research in the area of legal ethics yields important insights that will be
more fully integrated into the policy reform proposals discussed in Chapter 7.
To date, there are relatively few empirical studies on legal ethics; however,
the research discussed below provides important insights in furthering the
objectives of this thesis. A review of literature in this area (includes professional
ethics) yielded four primary and relatively reliable sources of research in this
area, each of which is introduced and discussed below.
The first important study in this area is Lambs late-1990s study. Lamb leveraged
447
Lermans 1990 anecdotal research in the United States to conduct similar research in
Australia. Debra Lamb, with the support of the Australian Research Council and the
Queensland Law Society, undertook a study to better understand the types of ethical
448
dilemmas faced by Australian lawyers. The qualitative study consisted of
approximately seventeen (17) interviews with barristers and solicitors across Australia
who practiced in different areas of law. The sole objective of this study was to obtain
449
realistic examples of the types of ethical issues lawyers face.
There was no focus on obtaining a representative sample or to analyse results
quantitatively or statistically. The research method consisted of a pre-interview letter
that asked respondents to consider at least two specific examples of the types of
ethical dilemmas they faced. Prior to the interview, lawyers received a letter that
447
448
Debra Lamb, Ethical Dilemmas: What Australian Lawyers Say About Them in Stephen Parker and
Charles Sampford, Legal Ethics and Legal Practice: Contemporary Issues (1995) 217-234.
449
Lamb, above n 448, 218.

asked them to identify two problems they considered troubling. The
term troubling was defined in the letter as follows:
By trouble, I mean trouble your conscience, make you

concerned that something unethical is being asked of you, or
make you personally worried about the consequences
450
of what you are being asked to do.
Lambs study resulted in more than 80 case studies reflecting the various
types of ethical dilemmas faced by Australian lawyers. Lamb placed these findings
into six main categories of problems: 1) conflicts of interest; 2) dealings with clients;
3) problems in litigation; 4) relationships with other practitioners; 5) problems within a
firm; and 6) conflict with a lawyers own morals. The category dealing with conflicts
with the lawyers own morals seems to show a clear conflict between what the legal
ethics of lawyers compels them to do versus what the lawyer as a non-professional
member of society would do. For example, while some lawyers appeared to conform
to the traditional notion that the lawyers personal morals are irrelevant and all moral
dilemmas are the clients issues, these same lawyers were conflicted about following
a clients potentially immoral instructions or determining how best to act in volatile
cultural situations where their legal jurisdictions legal ethics conflicted with those of
451
the visiting legal jurisdiction. As Lamb found, legal ethics issues are a constant
facet of a lawyers professional terrain and there is clearly a need for further and for
greater attention to be directed to educating lawyers about the types of problems
452
they are likely to face, and to suggest solutions which do not present a conflict
between the professional and non-professional dimensions of lawyers.
450
Lamb, above n 448, 218, n 5.
451
Lamb, above n 448, 233-234.
452
Lamb, above n 448, 234.

A second important study in the area of legal ethics is Moliternos 1994-
1995 comparative study of graduate preparedness. Professor Moliterno of the
William and Mary Law School in the United States undertook a comparative study
of law school graduates and their perceived ability and readiness to handle
professional ethics issues in practice after completion of their law school
453
education. This study is valuable and relevant in providing an assessment of
whether professional ethics courses as they are currently taught, especially at
major law schools in the United States, have a positive impact on a law
graduates perceived ability to handle ethical issues in practice.
As explained by Moliterno, the purpose of the study was to determine whether
a relationship exists between the professional skills and professional ethics curriculum
at a law school and the schools graduates satisfaction with their profession or their
454
perceptions of preparedness for various types of legal practice.
To this end, four law schools, each a state-supported school with records and
455
traditions of excellence, agreed to participate in an extensive survey.
Moliternos William and Mary Law School was one of the four schools as one
of Moliternos informal goals was to assess the unique curriculum structure of
456
his own law school as compared with other law schools.
The study methodology consisted of sending out a total of one thousand
surveys distributed evenly across the four participating schools (i.e., 250 surveys at
453
See generally, James E Moliterno, Professional Preparedness: A Comparative Study of Law
Graduates Perceived Readiness for Professional Ethics Issues (1995) 58-AUT Law and
Contemporary Problems 259.
454
Moliterno, above n 453, 260.
455
Ibid.
456
Moliterno, above n 453, 261 (care was taken to ensure there was no bias in terms of finding out the name
of the school by respondents or those conducting the survey and an arbitrary reply address was used to
prevent disclosure).

each of the four participating schools). The surveys participants were
graduates of each school who were randomly selected from the mailing lists
457
provided by the school. Graduates had been in practice between two to
458
five years. Of the 1,000 surveys sent out, 404 surveys were completed
459
and returned, resulting in a response rate of 42.3 percent.
The general legal curricula at all four schools was similar; however the
professional skills and professional ethics curricula was unique for Moliternos
460
William and Mary Law School. While the other three schools required that
students complete a professional ethics course, most notably as an upper-
level elective and not as a core first-year course, William and Mary Law
Schools professional ethics and professionals skills course is a required two-
year programme designed around long-term, comprehensive, simulated client
461
service where the professional/legal ethics aspects are interwoven into
daily experiential learning of what it means to be a lawyer and not just think
like one. This notable difference had an impact on the results of the study.
The results of Moliternos study yielded two key insights, especially with respect
to legal ethics education. First, while all four schools were asked to rank the importance
of knowledge of substantive law against other items such as legal and professional
ethics analysis and legal communications through research and writing, William and
Mary graduates ranked knowledge of substantive law below the top three skills versus
the other schools which ranked knowledge of substantive law at or near
457
458
Ibid.
459
460
Moliterno, above n 453, 262-263.
461
Moliterno, above n 453, 264 and 264-270 (discussing William and Marys approach to professional skills
and professional ethics education). This is discussed and treated further in Chapter 7.

462
the top three. Second, the mean preparation scores in the area of professional
ethics were 3.61 for the three traditional professional ethics curricula schools and
463
4.05 for William and Mary graduates. This is a statistically significant difference
that appears to point to the conclusion that William and Mary graduates of the
intense, two-year experimental professional ethics curricula appear to have greater
confidence in their ability to handle the key skills necessary for practice, including the
464
ability to navigate professional and legal ethics issues that may arise.
A third important study in the area of legal ethics is Macfarlane and Manwarings
2005-2006 study in Canada. Macfarlane and Manwaring conducted a study of the ethics
of legal practice in Canada using focus groups and a skills audit. One of the central
drivers of Macfarlane and Manwarings study appears to be the finding that, in Ontario,
Canada in particular, there is significant concern over professionalism and ethics in the
465
practice of law because professional ethics remains an orphan of legal education,
relegated to the status of being tangentially discussed in substantive law courses or part
466
of non-core or optional courses taken by a minority of students. In developing the
skills audit, Macfarlane and Manwaring
462
Moliterno, above n 453, 273-274 (discussing the relationship between these results and its consistency
with the theory that knowledge of substantive law is the least important according to 90 percent of hiring
partners who expect communication skills, analytical skills, and sensitivity to professional ethics issues as
primary skills that new lawyers need to bring to practice). See also Lon L Fuller, On Teaching Law (1950) 3
Stanford Law Review 35, 36 (There are certain propositions about legal education upon which, I believe, a
consensus exists. There is, for example, an almost universal agreement that our primary object is not to
impart information. Whatever it is we want the student to get, it is something more durable, more versatile and
muscular, than a mere knowledge of rules of law.); Erwin N Griswold, Law Schools and Human Relations
(1955) Washington University Law Quarterly 217, 229-30 (It is no longer possible for a student to know all the
law. Nor is it necessary or desirable.); Bryant G Garth and Joanne Martin, Law Schools and the Construction
of Competence (1993) 43 Journal of Legal Education 469, 490.
463
464
465
Julie Macfarlane and John Manwaring, Reconciling Professional Legal Education with the Evolving
(Trial-less) Reality of Legal Practice (2006) Journal of Dispute Resolution 253, 256-257.
466
Macfarlane and Manwaring, above n 465, 256.

st
asked a series of key questions about what skills are required of 21 century
lawyers and how legal education could support the development of those
467
skills. The skills audit undertaken by Macfarlane and Manwaring was based
on focus groups and Delphi panels to solicit direct input from Ontario legal
468
practitioners in the cities of Toronto, Windsor, Ottawa and Thunder Bay.
The focus groups and Delphi panels resulted in a taxonomy consisting of six
major skills categories: 1) client relationships; 2) managing a client file (dispute
resolution); 3) managing a client file (transactions and applications); 4) legal research
469
and writing; 5) practice management; and 6) ethical issues and professionalism. As
indicated by the taxonomy, ethics and professionalism is a central concern for practicing
470
lawyers yet this appears to gets marginal focus in Canadian legal education. The input
from Canadian practitioners was used to help address the issue of the lack of adequate
competence in professional ethics as well as the growing gap between the skills gained
st
through formal legal education versus the skills that practicing lawyers of the 21 century
require given what they actually do in legal
471
practice.
In the context of this thesis, Macfarlane and Manwarings study highights
467
Macfarlane and Manwaring, above n 465, 258-259.
468
Macfarlane and Manwaring, above n 465, 255-258.
469
Macfarlane and Manwaring, above n 465, 260.
470
Macfarlane and Manwaring, above n 465, 263-264 (discussing the results of feedback on professionalism
and ethics in particular, especially the ethical challenges as legal work shifts from a more trial focus and how
that creates situations for lawyers to be unethical). This section is especially true for lawyers who engage in
ADR processes such as mediation and negotiation. In addition, it is noted the situation may be different in
Ontario, Canada from the time of this study.
471
Macfarlane and Manwaring, above n 465, 258. The authors point out that this gap has been studied and
seems to be consistent and common in many common law jurisdictions. See also American Bar Association:
Section of Legal Education and Admissions to the Bar, Report of The Task Force on Law Schools and the
Profession: Sarrowing the Gap (the McCrate Report) (July 1992)
<http://www.abanet.org/legaled/publications/onlinepubs/maccrate.html> at 9 August 2010 (United States
perspective); General Council of the Bar and the Council of the Law Society, London, A Time for Change:
Report of the Committee on the Future of the Legal Profession (the Marre Report) (1988) (United Kingdom
perspective); Richard Wu, Reform of Professional Legal Education at the University of Hong Kong (2004)
14(2) Legal Education Review 153 (Hong Kong perspective).
the importance of ensuring that both legal education, in general, and legal ethics,
in particular, evolves with changes in legal practice. This study has merit when
analysing the legal ethics codes in Chapter 4, the legal ethics violation cases in
Chapter 5, and discussing the policy reform proposals outlined in Chapter 7.
Finally, a fourth important study in the area of legal ethics is Wilkinson,
Walker, and Mercers research initiative. Wilkinson, Walker, and Mercer along with
the University of Western Ontario commenced a research initiative in Canada in
1999-2000 to examine the effectiveness of codes of ethics in maintaining standards
472
of behaviour within the legal profession in Ontario. The aim of the study was to
determine to what extent Ontario lawyers used the jurisdictions legal ethics codes
for guidance on specific ethical issues, the extent to which the legal ethics codes
addressed or hindered their final decision on what action to undertake regarding the
specific ethical dilemma, and whether, despite the existence of legal ethics codes,
473
lawyer still relied primarily on independent ethical decision-making.
The researchers interviewed approximately 180 lawyers in Ontario, Canada
in four independent centres with the representative sample designed to mirror the
474
proportion of practitioners practising in private firms of various sizes in Ontario.
A total of 150 private practitioners and 30 corporate counsels were approached to be
part of this study. Each lawyer was interviewed for approximately thirty to forty-five
minutes and was asked to discuss certain ethical problems they faced, the extent to
472
Margaret Ann Wilkinson, Christa Walker and Peter Mercer, Do Codes of Ethics Actually Shape Legal
Practice? (2000) 45 McGill Law Journal 645, 645. The Ontario, Canada legal profession is guided by the Law
Society of Upper Canada Rules of Professional Conduct. See also The Law Society of Upper Canada
(Ontario), Rules of Professional Conduct (June 2009)
<http://www.lsuc.on.ca/media/rpc.pdf> at 9 August 2010.
473
Wilkinson, Walker, and Mercer, above n 472, 645-653 (discussing the nature of ethical codes as
related to this study).
474
Wilkinson, Walker, and Mercer, above n 472, 653-654.

which they used legal ethics codes for guidance, whether the ethics codes
were helpful, and whether they referred to another source of guidance to
475
finally resolve the ethical dilemma. Approximately 86% of lawyers
interviewed gave consent for their interview details to be part of the final
476
analysis using a chi-square statistical testing methodology.
In short, the findings showed that only 16% (14/154 respondents) even
477
mentioned the Handbook (Ontario, Canadas legal ethics guide). In addition, only
11 out of the 14 respondents indicated that the Handbook was helpful in
determining their ethical obligations in resolving the issue. Further, out of the 11
respondents, three respondents (3) indicated that the Handbook was not effective in
resolving the ethical issues that came up in the course of their practice. As a result,
the study concluded that only 5% (8/154 respondents) found the Handbook to be
478
useful in resolving a specific ethical issue. The remainder of respondents either
did not mention the Handbook as a source of guidance, negatively mentioned the
Handbook as helping to resolve their specific ethical dilemma, exercised
independent judgment in resolving the ethical dilemma, or solicited the advice of
479
senior attorneys for assistance in resolve the specific ethical issue.
The findings of the Ontario, Canada study seem to indicate that there is room for
improvement of the legal ethics codes in Ontario in terms of providing better, effective
assistance to lawyers when they face ethical dilemmas in practice. The same
475
476
Wilkinson, Walker, and Mercer, above n 472, 654
477
See generally, Law Society of Upper Canada, Professional Conduct Handbook (2nd ed 1998). This study
referred to the Law Society of Upper Canadas Professional Conduct Handbook which contains the Rules of
Professional Conduct.
478
479
Wilkinson, Walker, and Mercer, above n 472, 656-679 (discussing the results in detail and providing edited
transcripts of lawyer interviews and ethical issues faced).

could be said of the legal ethics of other jurisdictions as discussed further in
Chapter 4. The findings also demonstrate that the majority of lawyers do not
480
actually refer to the legal ethics codes for helpful guidance, implying that
modifying legal ethics codes or imposing new rules on ethical conduct alone
is not likely to influence lawyer behaviour. This appears to be due, in part, to a
pre-disposed moral perspective of lawyers as they enter the profession and
481
the perceived self-interested nature of most people, including lawyers.
For the purposes of this thesis, the Ontario, Canada study is important
in providing a perspective into the legal regulation reforms proposed in
Chapter 7. At best, it confirms that legal regulation and ethics codes do play a
role in shaping attorney behaviour in resolving ethical issues. At worst, it
sheds light that while legal ethics codes may play an explicit or implicit role in
such dilemmas, they are certainly not the main driver in ensuring an integrity-
based system of lawyer conduct. The legal regulation reform proposals
presented in Chapter 7 take these observations into account in specifically
addressing the potentially deceptive behaviour of lawyers in negotiations.
A final noteworthy analysis on the view of ethics, though not specifically legal
ethics, is the annual Honesty and Ethics consumer poll conducted by The Gallup
480
Wilkinson, Walker, and Mercer, above n 472, 656-679 (discussing the result of the study in Ontario,
Canada); Mize, above n 66, 245 (echoing a similar sentiment regarding New Zealands Rules of Professional
Conduct for Barristers and Solicitors in addressing negotiation behaviour by lawyers in New Zealand, [m]ore
guidance needs to be given on acceptable negotiating behaviour); Rhode, above n 151, 20-21 (discussing
the state of the American Bar Associations MPRC and arguing that bar ethical codes are not an adequate
source of guidance....end up reflecting too high a level of abstraction and too low a common denominator of
conduct.).
481
See, eg, Loder, above n 42, 333 (the influence which any code may have on lawyer attitudes and conduct
may be sorely limited, since moral disposition predates entry into the profession); T H Morawetz, Lawyers
and Conscience (1989) 21 Connecticut Law Review 383 (codes...cannot transform the most callous and self-
interested operators into lawyers of conscience. At best, codes and training can activate pre-existing
inclinations.); F C Zacharias, Specificity in Professional Ethics Codes: Theory, Practice, and the Paradigm of
Prosecutorial Ethics (1993) 69 Sotre Dame Law Review 223, 386.

Organisation in the United States. Since 1976, The Gallup Organisation has conducted
an annual poll asking a select group of random people in the United States to rate the
relative honesty and ethics of various professions. Interestingly enough, since 1976,
medical doctors and judges have routinely outranked lawyers on the honesty and ethics
rating, strongly suggesting that lawyers are not considered to be as honest or ethical as
482
other professions. This view was further confirmed by the 2002 ABA Section on
483
Litigation public perception of lawyers study. These negative ratings appear to get
worse the more someone is actively engaged in using a lawyer or legal services. The
Gallup polls as well as other professional and consumer studies related to the legal
profession are discussed in greater detail in Chapter 6.
In conclusion, the foregoing research in the area of legal ethics appears
to demonstrate that while the legal ethics codes are intended to guide lawyer
behaviour, they are not as effective as expected in curtailing unethical conduct.
Furthermore, while law firms and practitioners regard the ability to manage
st
professional ethics dilemmas as a key skill for 21 century lawyers, law schools
do not appear to effectively integrate the development of these core skills into
mainstream legal education. These insights are important in developing and
implementing the integrated policy reform proposals discussed in Chapter 7.
2.5.5 Research About Lawyers Bargaining Behaviour
As discussed earlier, legal ethics as well as bargaining ethics
models may influence a lawyers bargaining (negotiation) behaviour.
482
See generally The Gallup Poll, Honesty and Ethics Survey Trend Analysis: 1976 2008. This is on file
with the author. A copy is included in the Appendices. See also American Bar Association Section of
Litigation, Public Perception of Lawyers: Consumer Research Findings, above n 13.
483
See, eg, Hengstler, above n 13, 60; American Bar Association Section of Litigation, Public
Perception of Lawyers: Consumer Research Findings, above n 13.

The purpose of this section is to highlight and discuss research
related to lawyers bargaining behaviour. Recent studies into lawyers
negotiation behaviour have generally been based on case studies involving
law students given the issues related to research into lawyers behaviours
484
in negotiation discussed earlier in this chapter. However, the first study
discussed below does involve personal injury lawyers.
In 1994, Davis conducted a survey of professional injury solicitors in Queensland,
485
Australia. The purpose of the survey was to determine the attitudes and beliefs of
Queensland personal injury solicitors relevant to negotiating behaviours with the goal of
interpreting the results in the context of prevailing psychological research in games and
486
decision theory. The research method involved a survey questionnaire which was sent
487
out to 148 solicitors in Queensland specialising in personal injury litigation. Each
survey questionnaire contained sixteen (16) statements specific to personal injury
488
litigation and negotiation. Respondents were asked to indicate the degree to which
they agreed or disagreed with each of the sixteen (16) statements. To eliminate bias and
ensure confidentiality, surveys were sent unmarked with a reply-paid envelope and the
results were tabulated by an external
489
tabulator.
484
See Chapter 2, section 2.5.1 (Introduction) for a detailed discussion on this topic.
485
Note: It is noted that the negotiation practices of personal injury lawyers today, at the time of this thesis,
may be different from those discussed in this 1994 study. However, the study provides valuable insight into the
negotiation practices of a distinct subset of lawyers. See, eg, Legal Services Commissioner v Mullins [2006]
LPT 012, a recent Queensland jurisdiction legal ethics case discussed more fully in Chapter 5 which involves
a personal injury barrister whose negotiation behaviour appears to reinforce the findings of Davis 1994 study.
486
See generally Davis, above n 126.
487
Davis, above n 126, 735.
488
Ibid.
489
Ibid.

Of the 148 surveys sent, 105 respondents replied for an overall response rate of
71%. Out of the 105 completed surveys, 58 respondent-lawyers represented mainly
plaintiffs while 41 respondent-lawyers primarily acted for defendants. Among the various
attitudes and beliefs about negotiation by personal injury lawyers, Davis found that most
plaintiffs are highly motivated towards settlement early in the action, and again shortly
490
prior to trial. Conversely, defendants start [ ] low and build [ ] with increasing
491
proximity to trial. The findings from this survey also support the research on prospect
theory which argues that plaintiffs tend to be risk- averse in a potential gains scenario
492
and defendants tend to be risk-takers in the same situation.
In the context of this thesis, the survey asked respondents to assess
statements related to the role of exaggeration and misrepresentation which, as has
been established above, are both considered to be acceptable deception tactics in
negotiation. Davis found that twenty-four percent (24%) of both plaintiff and
defendant lawyers used exaggeration and considered it normal when indicating
493
that an offer was the last offer. This represents nearly 50% of all respondents.
Davis also found that nearly thirty-six percent (36%) of plaintiff lawyers and thirty-
nine percent (39%) of defendant lawyers felt that it was often necessary to
494
misrepresent the strengths of your position to get a good negotiated result.
Statistically, these results, on their own, are not necessarily conclusive to assert
that plaintiff or defendant lawyers are prone to exaggeration or misrepresentation to the
extent of being actionably deceptive; however, it is arguably
490
491
Ibid.
492
Davis, above n 126, 748. See also Kahneman and Tversky, above n 265, 263-291.
493
494
Ibid.

significant that so many of them feel the need to use these tactics or that such tactics
are common in order to represent their clients in the context of personal injury
495
negotiations. As Davis points out, many assert that there is a difference between
496
exaggeration, misrepresentation, and deception in such negotiations, leading one
to preliminarily conclude that although most lawyers or clients might see
exaggeration (puffing) and misrepresentation as deceptive, the lawyers in this study
consider it acceptable within the distributive bargaining context of personal injury
negotiations, where a win-lose mentality is the primary modus operandi and one
497
party seeks to maximise the pay-out while the other party seeks to minimise it.
A second study on legal negotiation occurred approximately two years later.
Rachlinskis 1996 experiment attempted to demonstrate the framing theory of ordinary
litigation as it might apply to lawyers and the legal profession. Rachlinskis study
involved a copyright problem given to law students. In this study, half of the students
498
played defendants and the other half played plaintiffs. In the hypothetical copyright
problem, plaintiff-subjects could either accept a $200,000 settlement offer by the
defendant or face a 50% chance of winning $400,000 at trial (and a 50% chance of
499
winning nothing). Defendant-subjects could either pay a $200,000 settlement to the
plaintiff or face a 50% chance of losing $400,000 at trial (and a 50% of losing
500
nothing). In this scenario, the rational choice theory predicts that both plaintiffs and
defendants would be either indifferent to both options (risk-neutral) or
495
See eg, Legal Services Commissioner v Mullins (2006) (legal ethics case discussed in detail in
Chapter 4)
496
497
498
Rachlinski, above n 269, 113.
499
Ibid.
500
Ibid.

501
would prefer settlement (risk-averse). However, Rachlinki found that, consistent
with the framing theory, 77% of plaintiff subjects preferred settlement (risk-averse)
502
while 69% of defendant-subjects preferred trial (risk-seeking).
A third study on legal negotiation behaviour worth noting is Guthries study
involving the frivolous framing theory. In 2003, Guthrie conducted a similar study to
503
demonstrate the frivolous framing theory of litigation behaviour. Frivolous litigation is
litigation without merit on the basis of law or fact that unnecessarily consumes the
504
valuable resources of the legal system. Guthries scenario involved a sample litigation
problem given to law students. Half of the students played defendants and the other half
505
played plaintiffs. Plaintiffs were given the option to either accept a $50 settlement
506
payment or face a 1% chance of winning a $5,000 judgment at trial. Similarly,
defendants could either pay a certain $50 settlement to the plaintiff or face a 1% chance
507
at having to pay a $5,000 judgment at trial. Once again, the economic theory of suit
and settlement (rational choice theory) predicts that
501
Guthrie, above n 265, 1121-1122. See also Chapter 2, section 2.3.7 (Decision-Making Theories
Affecting Legal Negotiation) for more information on these various decision-making theories.
502
Rachlinski, above n 269, 128-129.
503
See Chapter 2, section 2.3.7 (Decision-Making Theories Affecting Legal Negotiation)
for more information on these various decision-making theories.
504
Guthrie, above n 265, 1115; See also John Lande, Failing Faith in Litigation? A Survey of Business
Lawyers' and Executives' Opinions (1998) 3 Harvard Segotiation Law Review 1, 26 (1998) (reporting that 53
percent of inside counsel and 14 percent of outside counsel in his survey believe that more than half of the
cases filed against businesses are frivolous); Robert G Bone, Modeling Frivolous Suits (1997) 145 University
of Pennsylvania Law Review 519, 520 ([T]here is widespread belief that frivolous litigation is out of control.
Many people cite frivolous suits as the cause of the litigation system's most serious ills-huge case backlogs,
long delays and high trial costs.); Valerie P Hans and William S Lofquist, Jurors' Judgments of Business
Liability in Tort Cases: Implications for the Litigation Explosion Debate (1992) 26 Law and Society Review
85,95 (1992) (reporting survey results showing that 83 percent of jurors in cases involving business
defendants either agree or strongly agree that there are far too many frivolous lawsuits)
505
Chris Guthrie Framing Frivolous Litigation: A Psychological Theory (2000) 67 University of Chicago
Law Review 163, 188-189.
506
507
Guthrie, above n 265, 1124 (discussing the frivolous framing theory informal study)

both the plaintiffs and defendants would be either indifferent (risk-neutral) or
508
prefer settlement (risk-averse).
The results of this study indicated that, contrary to the economic theory
of suit and settlement yet consistent with the frivolous framing theory, 62% of
509
plaintiff-subjects preferred a trial (a risk-seeking option). In addition, 84% of
the defendant-subjects preferred settlement (a risk-averse option) where both
510
parties are faced with low-probability gains or losses.
In summary, each of these studies on how lawyers might behave in litigation
and negotiation is important to the issues discussed in this thesis. For example, both
the framing theory of ordinary litigation and the frivolous framing theory of litigation
behaviour can be used to potentially predict the possibility of lawyers using
deception in negotiation based on the lawyers perception of whether using
deception in negotiation is a risk-seeking or risk-averse option at a given point in the
negotiation. Furthermore, the foregoing research can be used to effectively define
and implement the policy reform proposals discussed in Chapter 7.
2.5.6 Research About Lawyers Bargaining Behaviour and Ethics
Empirical research concerning a lawyers potentially unethical behaviour in
negotiation is generally focused on law review articles and views from legal scholars
and ethicists on whether lawyers fulfil their ethical obligations or how they should fulfil
those obligations. However, this area is becoming more critical given a global
508
509
Guthrie, above n 505, 188-189.; See also Chris Guthrie et al, Inside the Judicial Mind (2001) 86 Cornell
Law Review 777 (discussing the results of an informal study of federal judges and magistrates in settling a
simple copyright dispute in light of the prospect theory).
510

economy, cross-national legal jurisdictions, and the changing role of
the legal profession in this global world.
The relatively few comments on this topic have focused less on lawyers
potentially unethical behaviour than on the potential impact of using ethically
ambiguous tactics in a negotiation. They are worth noting here to the extent
that the impact may be more or less consistent in a legal negotiation setting. In
addition, the research provides insight into the factors which may influence the
lawyers decision to use deception in negotiation or engage in other conduct
that may violate the legal ethics code of a given jurisdiction.
In 1991, Lewicki et al found that where there is a likelihood of a future
long-term relationship with the other party, negotiators are less likely to
511
endorse marginally ethical tactics. Later, in 1999, Lewicki et al went on to
identify five contextual factors which play a role in a model of ethical decision
making, including: 1) relationship with the other party; 2) the relative power of
512
the negotiators; 3) whether or not the negotiator is acting as an agent; 4)
513
the group and the organisational norms; and 5) the cultural norms.
There have also been some consistent findings in negotiation literature with
regards to the differences in men and women on the topic of using ethically ambiguous
negotiation tactics (EANTs), such as deception. Generally it appears that women are less
accepting of EANTs than men and older people disapprove of EANTs
511
Roy J Lewicki and G Spencer (1991) Ethical relativism and negotiating tactics: Factors affecting their
perceived ethicality (Paper presented at the Academy of Management, Miami, Florida).
512
See, eg, Norman Bowie and R Edward Freeman, Ethics and Agency Theory (1992) (noting that
when people act as an agent they may be more willing to violate personal ethical standards.).
513
See generally Roy J Lewicki, David M Saunders, and John W Minton, Segotiation (3rd ed, 1999).

514
relative to younger people. Banas and McLean-Parks conducted a study of MBA
students and found that negotiators classified as ideologically absolutist (would
assume the best outcome can be achieved by following universalist principles) were
less accepting of EANTs than those who were classified as ideologically subjectivist
515
(negotiators who base decisions on personal values and perspectives). Finally,
Rivers stated that determining the use of appropriate negotiation tactics in an
international business environment is critical since a negotiator using a tactic that
might be considered unethical by the other party results in the perpetrator[feeling]
distraught, personal stress or even guilt, and the receiverlikely to be angry,
516
embarrassed and most victimslikely to seek retaliation and revenge.
Aquino studied the impact of an ethical climate on the use of deception during
517
negotiation is especially salient. Aquino hypothesised the following: 1) that if there
was an ethical organisational climate, negotiators would use less deception; 2) that if
there was an ethical organisational climate, negotiators would be better perceived as
honest; and 3) that those negotiators perceived as honest due to the ethical climate
would also achieve a less personally favourable outcome than those not in a similar
518
situation. Aquino studied the effects of face-to-face negotiations in which participants
were required to come to a negotiated agreement between supplier
514
See, eg, R J Volkema, Ethicality in negotiations: An analysis of perceptual similarities and differences
between Brazil and the United States (1999) 45(1) Journal of Business Research 59-67; R J Volkema,
Demographic, cultural, and economic predictors of perceived ethicality of negotiation behavior: A nine-
country analysis (2004) 57 Journal of Business Research 69-78; Robinson, Lewicki, and Donohue, above n
332, 649-664.
515
Rivers, above n 77, 5 (citing J T Banas and J McLean-Parks, Lambs among lions? The impact of ethical
ideology on negotiation behaviours and outcomes (2002) 7(2) International Segotiation 235-262).
516
Rivers, above n 77, 4 (citing Lewicki, Saunders, and Minton, above n 513).
517
See generally Karl Aquino, The effects of ethical and the availability of alternatives on the use of
deception during negotiation (1998) 9(3) The International Journal of Conflict Management 195-217.
518
See generally Aquino, above n 517, 195-217; See also Sue Fitzmaurice, The Mediator and Ethics:
Searching for the Wisdom of Solomon
<http://www.windeaters.co.nz/publications/ethics/mediation%20ethics.pdf> at 9 August 2010.

and buyer. Aquino found the following: 1) that a knowledge of ones ethical
organisational climate decreased the use of deception; 2) those negotiators who
behaved honestly were perceived as honest by the other party and those behaving
dishonestly were so perceived by the other negotiator; and 3) that the honest
negotiators negotiated agreement price with the supplier ($25.80) was more than
519
that achieved by the dishonest negotiator ($23.75), with the latter presumably
having achieved the better deal. Aquinos study appears to demonstrate that when
ethical standards are highly salient, negotiators were significantly less likely to use
520
deception, even when there were strong individual incentives to act otherwise.
A final relevant study in this area involved law students and consisted of
demonstrating the applicability of prospect and framing theory discussed above on a
legal professionals ethical conduct. As previously indicated, legal scholars have argued
521
that prospect theory is highly relevant to the legal profession in multiple areas. In an
effort to test the effect of framing theory on an issue of professional responsibility,
Rachlinski gave subject-participants (law students) a hypothetical products liability
522
litigation problem. Student-participants assumed the role of counsel for the defence
for a pharmaceutical company. In the hypothetical, subject-participants were informed
of the following additional facts: 1) the plaintiffs were parents of a child injured by a
product manufactured by the defendant-company; 2) the plaintiffs had already offered
to settle the case for $3 million; 3) unknown to the plaintiffs, the defence had
discovered and withheld during discovery certain relevant
519
See generally Aquino, above n 517, 195-217; Fitzmaurice, above n 518, 2-3 (discussing Aquinos
study).
520
Rivers, above n 77, 6 (citing Aquino, above n 517).
521
See, eg, Rachlinski, above n 269, 113; Guthrie, above n 265, 1115.
522
See Rachlinski, above n 269, 113.

523
documents which would prove incriminating to the defendant-company.
Subject-defence counsel also learned that, if they agreed to settle the case
without disclosing the documents to the plaintiffs, they might be sanctioned as
524
having acted unethically under the jurisdictions professional ethics code.
Rachlinski assigned two distinct scenarios to the subject-participants (acting
as counsel for the defendant). One-half of the subject-participants were assigned to a
gains scenario in which they were told that their client, the pharmaceutical company,
had expected to pay $5 million to settle the case and so thought that the case was
525
going well given the plaintiffs only wanted $3 million to settle the case. The other
half of the subject-participants were assigned to a loss scenario where the client
thought that the case was going poorly because they only expected to pay $1 million
526
to settle whereas the plaintiffs were asking for $3 million in settlement.
Rachlinski then asked the student-participants in both groups to advise whether
they would accept the plaintiffs settlement offer given this information.
Rachlinski found that the results were consistent with the framing theory
even though both groups faced the same option to settle the case. Rachlinski found
that only 12.5% of those assigned to the gains scenario would engage in an
527
ethically risky prospect of settling prior to disclosing the incriminating documents.
In contrast, approximately 45% of those in the loss scenario indicated they would
settle without disclosing the documents which were incriminating to their client,
presumably because they felt their client would be even less satisfied with the
523
Ibid.
524
Ibid.
525
Ibid.
526
Ibid.
527
Ibid.

528
progress of the case than they already were. Consistent with prospect theory,
Rachlinski found that those facing actual or perceived losses were more likely
529
to adopt a risk-seeking, and ethically dicey, litigation strategy.
2.5.7 Research About Lawyers Bargaining Behaviour and Deception
While the research discussed in Chapter 3 indicates that lawyers engage in
deceptive behaviour in negotiations, there is little quantitative empirical research
into lawyers deceptive behaviour in bargaining that statistically supports the
qualitative findings of such behaviour. However, it is widely acknowledged that there
530
are routine occurrences of deception in negotiation yet there is also little
531
agreement among experts on the extent to which deception is appropriate.
For example, some suggest that deception is an integral part of the negotiation
532
process while others seem to categorically dismiss deception as necessary, even in
533
negotiation and particularly where lawyers are concerned. Others have targeted
certain types of deception as acceptable while outright lies are unacceptable. For
example, Wokutch and Carson argue that while deception in negotiation may be normal,
it is worse to lie about an issue which the other parties have a right to know
528
See Rachlinski, above n 269, 113. This also appears to demonstrate that the way the scenario is initially
framed triggers the subjects to be anchored to that perspective and impacts the way they make a decision.
Again, a persons heuristics and biases come into play and affect their perceptions and judgments in every
negotiation setting. The use of deception would seem to only heighten such biases and judgments.
529
Guthrie, above n 265, 1142 (discussing Rachlinkis study results).
530
531
Ibid.
532
See, eg, Albert Carr, Is business bluffing ethical? 46(1) Harvard Business Review 143-153; White, above
n 60, 929; Lax and Sebenius, above n 99, 491-498; R E Wokutch and T L Carson, The ethicality and
profitability of bluffing in business in Roy J Lewicki, John A Litterer, David M Saunders and John W Minton
(eds) Segotiation (1993) 499-504.
533
See, eg, White, above n 60, 926; Carr, above n 532, 143-153. Cf Wetlaufer, above n 31, 1219; Reed
Elizabeth Loder, Moral Truthseeking and the Virtuous Negotiator (1994) 8 Georgetown Journal of Legal
Ethics 45; Rubin, above n 69, 577.

534
than one about which they have no right to know. Of course the dilemma
here seems obvious in that there is no clear agreement on who determines
the parties right to know something and how one determines what is
necessary to know versus something that might appear irrelevant. Bluffing in
535 536
negotiation is rated as acceptable to some yet frowned upon by others.
One deceptive practice, lying about ones reservation price, appears to be
an acceptable tactic by most scholars. Anton argued that while lying about ones
reservation price is acceptable, fabricating material facts is unethical. Lewicki and
Stark indicated a similar notion and said that lies about material facts are
537
inappropriate and later asserted that while lies about reservation prices are
538
still acceptable, lies about material facts are unacceptable. Once again, there
are likely several issues in determining what may be considered a material fact or
whether something that is not considered a material fact at one point is later a
very relevant fact as negotiations draw to a close.
In summary, this section has provided a review of literature into existing
research and commentary regarding legal negotiation, the use of deception in
negotiation, and the impact of ethics in negotiation. The next section continues
with a critical analysis and evaluation of the literature review.
534
Wokutch and Carson, above n 532, 502.
535
See, eg, Carr, above n 532, 143-153. It is important to note that Carr speaks about bluffing in the
business context and since the publication of this article, even business demands greater ethics in this area.
As well, the question is whether his permissive view of bluffing in business can or should apply to lawyers
and the legal profession.
536
See, eg, J Gregory Dees and Peter C Crampton, Shrewd Bargaining on the Moral Frontier: Toward a
Theory of Morality in Practice (1991) 1(2) Business Ethics Quarterly 1; Roger Fisher, William Ury and Bruce
Patton, Getting to Yes: Segotiating Agreement Without Giving In (2nd ed 1991); Lewicki and Stark above n
330, 69-95; R J Lewicki and R J Robinson, Ethical and unethical bargaining tactics: an empirical study (1998)
17 Journal of Business Ethics 665-682.
537
Lewicki and Stark above n 330, 69-95; Strudler, above n 67.
538
See, eg, Lewicki, Saunders, and Minton, above n 513; Lewicki and Robinson, above n 536, 665-
682.

2.6 CRITICAL A4ALYSIS OF LITERATURE REVIEW
The purpose of this section is to provide a critical evaluation of the findings of
the literature review, including strengths and weaknesses of existing research and
potential gaps in the research. In addition, this section describes how this thesis and
the results of a detailed enquiry into the research questions attempts to close some of
these gaps and thus provide an original and valuable contribution to the field.
2.6.1 Summary of Findings
In the early 1980s, one law professor referred to the major unstudied variable in
539
the justice of the legal system the patterned behaviour of individual lawyers.
In attempting to address the research questions, the issue of the patterned
behaviours of legal professionals with regard to alleged deceptive conduct in
negotiation is still a major unstudied variable. The literature review in this
chapter demonstrates several key findings related to the research problem and
research questions outlined in Chapter 1. First, there is a plethora of literature on
negotiation both as a process and in terms of negotiation strategies and tactics.
In addition, while there is ever-increasing literature on legal negotiation,
guidance on the ethics of legal negotiation still appears to be in its infant stages.
As such, legal practitioners, when looking for guidance on appropriate
negotiation behaviour and ethics, are more likely to be influenced by the
pervasive and growing body of work on general negotiation in business and the
customary negotiation practices of a given jurisdiction than by explicit guidelines
on ethical negotiation behaviour as provided by legal professional associations.
539
Condlin, above n 4, 227 n 10.
10
Second, there is insufficient attention to the types of tactics considered
appropriate or not appropriate in legal negotiation. Law and legal scholars seem to
have adopted the views of business scholars in regards to negotiation tactics,
perhaps as a result of the lack of more credible information about how lawyers ought
to conduct negotiations in their professional capacity. This seems to be reflected in
current literature. Existing literature, which discusses negotiation strategies and
tactics used by lawyers as well as some ethically ambiguous negotiation tactics
would benefit from a more clearly defined structure that would make it user friendly
to legal practitioners in particular. By this I mean that negotiation courses in a faculty
of law could implement, for example, a comparative analysis of the strategies and
tactics lawyers can use in negotiations and addressing the ethical implications of
lawyers violating the legal ethics code. This is especially important because, as
discussed earlier, lawyers are considered public servants and therefore have a
higher ethical obligation than business persons with regards to acceptable conduct,
such as the use of deception in negotiation.
Third, while there is discussion on the ethics of negotiation for lawyers, this
appears to be fairly recent. Much of the debate regarding negotiation ethics for lawyers is
centred on legal ethics rules, their applicability and their effectiveness. Bargaining ethics
models have been proposed though it is not clear that one model has been adopted by
legal practitioners to the exclusion of others since it is similarly unresolved whether
negotiation even needs a separate code of ethics. As the review and analysis of various
540
legal ethics codes in Chapter 4 appear to indicate, the treatment and focus of
negotiation as a distinct function central to the lawyers day-to-
540
See Chapter 4 (Efforts by Professional Ethics Codes to Regulate Deceptive
Behaviours in Negotiation) for more information.

day practice is not consistently addressed in the same vein as, for example,
the role of the lawyer as a judge or third-party neutral (mediator).
A fourth observation from the literature review is central to the question of
the use of deception in negotiation by lawyers. The legal system, at least in the
United States, appears to still embrace Whites view that it is necessary for a
lawyers to deceive in negotiation if they are to properly do their job and be
541
successful. As discussed further in Chapter 4, Whites argument regarding
acceptable deception in negotiation is reflected, for example, in the language of
Rule 4.1 of the American Bar Association Model Rules of Professional Conduct
as well as the formal opinion of the American Bar Association Standing
542
Committee on Ethics and Professional Responsibility. Even in the midst of
543
opinions to the contrary, the legal system, at least in the United States,
appears to cling to this empirically unsupported proposition, dismissing the
544
possibility that a negotiation can be successful without use of deception.
Finally, the literature review appears to demonstrate that while there are
books and articles written about negotiation for lawyers, it is still arguable whether
541
White, above n 60, 928 (misleading other side is the essence of negotiation and is all part of the game);
See also American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal
Opinion 06-439: Lawyers Obligation of Truthfulness When Representing a Client in Negotiation: Application
to Caucused Mediation 4-6 (April 12, 2006) (reaffirming the use of certain kinds of deception in negotiation).
542
See generally Formal Opinion 06-439, above n 541, 4-6.
543
See, eg, Fisher, Ury, and Patton, above n 536 (advocating for principled-negotiation instead of
adversarial negotiation approach).
544
See also Formal Opinion 06-439, above n 541, 4-6 (discussing certain cases where intentional
misrepresentation would be considered unethical). Despite these discussions, the American Bar Association
still condones certain levels of deception in negotiation. It is important to note that most of the other common-
law jurisdictions which were the focus of this study (except Canada) do not explicitly or implicitly address
acceptable or unacceptable negotiation behaviour in their legal codes and therefore, I cannot comment on
them specifically except that one could presume that either general business or customary negotiation
practices are acceptable unless otherwise indicated. See also Avnita Lakhani, Deception as a Negotiation
Tactic: A Study of the Views and Perceptions of Practitioners Update (October 2009). This article is also
published in the Spring 2010 issue of Rutgers Conflict Resolution Law Journal.

negotiation is a separate function of the legal professional. It does not appear to
be subject to the same level of scrutiny as mediation, arbitration or litigation with
its own set of rules and ethics codes. In general, law appears to see negotiation
as a skill rather than as a separate activity or function of the lawyer deserving of
545
unique mention. As such, articulated empirical research into legal negotiations
is rare given the legal rules, codes of conduct and professional responsibility
privileges which form a strong part of a lawyers professional practice and are
expected to provide sufficient guidance.
In terms of this thesis, the findings of this literature review revealed several
strengths, weaknesses and gaps. These are discussed in the following sub-sections.
2.6.2 Strengths
The literature review revealed four principle strengths of the current state of
knowledge in the areas and disciplines which are the focus of this thesis. First, there
appears to be a resurgence of interest in the behaviours of legal professionals and
ethics, especially in the area of negotiation ethics. Perhaps driven by the continued
negative perceptions and press concerning lawyers conduct, there has been a surge of
discussion and debate about the need for fairness and truthfulness in negotiations and
546
the need for more candour in negotiations. This resurgence demonstrates the
timeliness of this thesis and the importance of having a comprehensive foundation upon
which to address such complex issues as the use of deception in negotiation.
545
Note: This is an arguable observation. It is duly noted that the American Bar Association does discuss
negotiation though not necessarily as a separate function. Furthermore the ABA lists negotiation as a
fundamental skill of a lawyer.
546
See, eg, Carrie Menkel-Meadow and Michael Wheeler (eds), Whats Fair: Ethics for Segotiators (2004);
Andrea Kupfer Schneider and Christopher Honeyman (eds), The Segotiators Fieldbook: The Desk
Reference for the Experienced Segotiator (2007) (containing chapters discussing ethics, fairness, and
morality in negotiation).

A second strength of existing literature is that much of the recent literature
and commentary acknowledges the changing aspects of the legal profession which,
in turn, requires renewed assessment of how best to support the legal profession in
adapting to these changes. The profession of law has traditionally been focused on
public service ahead of personal and professional gains even as it is also recognised
547
as ones livelihood. However, the profession has increasingly become more like a
548
business, with a focus on profits, efficiency, and serving customers. Globalisation
has only made the legal profession more competitive, cross-national, and multi-
jurisdictional. Furthermore, the increased evolution and integration of developing
countries into the rule of law paradigm as well the increased use of technology in the
courtroom means that the legal profession is poised to significantly evolve even
further in the next few years. This rapid evolution from a public service profession to
a client-driven business and service-provider for profit has serious implications for
how legal rules and ethics will ensure that the legal system stays viable and
trustworthy in the eyes of its citizens and for the benefit of the public interest.
A third strength of the literature review is increased acknowledgment and
appreciation of the value of social sciences methodology and empirical research as
integrated into law teaching. The legal academic world is embracing empirical
research (qualitative and quantitative) as adding value to the profession, academia,
and the knowledge base from which to improve the practice of law. The increased
integration of social science research methodology as well as cross-disciplinary
547
See, eg, Davis, above n 171; Derek Bok, Access to Justice: The Social Responsibility of Lawyers:
Markets and Mindwork (2002) 10 Washington University Journal of Law & Policy 1; Brandeis, above n 182;
Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1995).
548
See, eg, Laurel S Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal
Profession as Service Providers (2009) (Penn State University ~ Dickinson School of Law Legal Studies
Research Paper No. 01-2009) <http://ssrn.com/abstract =1304172> at 9 August 2010.

research from the fields of, for example, business, economics,
psychology, and negotiation, demonstrates the importance of future
legal research being multi-disciplinary.
Finally, the continued breadth, depth, and diversity of literature on
negotiation demonstrate that it is a vital and important process, especially to
legal professionals. However, it is still viewed primarily as a skill and not a
separate function. The profession would benefit more dialogue on the nature of
legal negotiation, greater education of the bargaining ethics surrounding legal
negotiation and the potential impact of deception in negotiations. This is still a
relatively unstudied area which affects public perceptions and public interest.
In the context of this thesis, the strengths of the literature review provide a
foundation from which to address each of the three principle research questions
and establish the foundations for recommending the policy reform proposals in
Chapter 7. At the same time, the weaknesses of the literature review limit the
extent to which conclusions can be drawn. Nevertheless, weaknesses in the
literature review also provide an opportunity to address some of the gaps in the
context of this thesis and to establish an analytical framework which may be
used in future research across multiple jurisdictions.
2.6.3 Weaknesses
There are five major weaknesses of the existing literature in the
context of this thesis. Many of these are consistent with prior discussions on
the issues of conducting research into legal negotiation as well as the
institutional and methodological obstacles of empirical research into the area
of negotiation area given the constraints of the legal system.

A principal limitation is the lack of empirical research on legal negotiation.
549
Apart from Williams long-term study into legal negotiation, there is relatively little
formal empirically-based research using a validated social sciences methodology that
looks into the negotiation behaviours of legal professionals. While there are
experiments that attempt to predict how lawyers are likely to act in negotiations,
these studies generally involve students in law or business. Consequently, the results
could be criticised for lack of generalisability to actual legal professional behaviour
while social science researchers are likely to question its validity on the basis of
research methods, sample size, data collection and data analysis.
A second weakness of existing literature is a lack of sufficient research into
what is ethically permissible in legal negotiation as different from business
negotiation or other types of negotiations. As discussed, negotiation as practiced by
lawyers appears to be constrained by the rules and codes of conduct imposed on
the profession of law, at least as indicated on the face of the applicable rules and
codes of conduct. Given the view of negotiation as a skill rather than a function for
the legal professional, the lack of a distinct body of research in this area may seem
appropriate; however, this is arguable especially if negotiation is a critical daily skill
for lawyers and the public perception of lawyers continues to be negative.
A third weakness is that there is a less than comprehensive understanding about
the nature of ethics, legal ethics, and bargaining ethics and how they affect a lawyers
negotiation behaviour as well as the extent to which deception is allowed and acceptable
in the context of the legal system. Legal professionals have multiple and, at times,
conflicting duties of loyalty which place them in ethical dilemmas. These
549
See generally Williams, above n 202. Even this study is arguably not sound from a methodological
perspective since self-reported behaviour is subject to researcher and subject bias.

same duties combined with the universal practice of negotiation in so many
contexts (formal and informal) are a basis of scholarly and professional
debates on the merits of imposing candour in negotiations versus
acknowledging the fact that deception in negotiation cannot be regulated and
the costs of imposing candour are too great at best and unknown at worst.
A fourth potential weakness, though this may simply be an inevitable and
normal function of separate legal jurisdictions, consists of apparent inconsistencies
between legal jurisdictions in how the legal ethics codes treat negotiation and the
use of deception in negotiation. For example, while arguably the United States has
taken a more comprehensive look at the extent to which a certain level of deception
is allowed in legal negotiations, Australia does not appear to allow this distinction in
550
its ethics code. Presumably any level of deception in Australia is an ethics
violation. In addition, while the United States does not have a separate code of ethics
for lawyers as negotiators, a Canadian province does see negotiation as a separate
551
function of the legal professional subject to a separate code of ethics.
Finally, a fifth potential weakness is the subjective nature in which many ethics
violations cases are determined where there does not appear to be a clear
understanding in the law/negotiations/ethics arena for proper decision-making on ethical
issues such as deception in negotiation. Though some scholars have proposed an
ethical decision making model, this has not been formally adopted by the legal
552
profession or recognised by a majority of negotiators. As a result, courts and
550
Note: This is further discussed in Chapter 4.
551
Note: This is further discussed in Chapter 4.
552
See, eg, Loder, above n 533, 45 (discussing a moral problem-solving approach to be used during
negotiations which would obviate the need to use deception); Norton, above n 19, 270-298 (presenting

disciplinary tribunals appear to make subjective assessments about the
gravity of conduct violations and the punishment imposed in relation to the
553
offending conduct. From a practical standpoint and even with the existence
of ethics advisory opinions, a lack of such guidelines might leave a lawyer
stranded when it comes to making ethical decisions.
2.6.4 Gaps in the Literature Review/Research
The gaps in the literature with regards to the research questions and
the focus of this thesis can best be summarised as follows.
First, while legal ethics codes are a constant in a lawyers professional life, there
appears to be a lack of comprehensive understanding of the ethics governing the lawyer
as a professional and the ethics of the clients he/she is meant to serve. In essence,
there is a gap in the legal ethics codes of specific rules or guidelines that assist the
lawyer in choosing between appropriate courses of action when faced with certain
dilemmas. This may be in the form of a decision tree or an ethical decision-making
framework. As a result, a lawyer faces innumerable ethical decisions in serving his/her
client. These ethical dilemmas are further complicated by the sometimes conflicting
duties to the client, the courts, and the legal system. The result is ambivalence about
554
lawyers and the legal profession. This includes the continuing negative perception of
lawyers, continuous issues with unethical conduct of lawyers and the pressures on the
profession resulting from a demanding and taxing
a functionalism model of bargaining ethics as a means of making more ethical

decisions during negotiations).
553
See Chapter 5 (The Success of Professional Ethics Codes in Controlling Lawyers Deceptive Behaviour)
for more discussion on this topic based on a qualitative study of ethics violation cases in the Queensland legal
jurisdiction.
554
See Chapter 6, Section 6.5 (Consumer Studies of the Legal Profession are the Sting in the Tail) for a
detailed discussion of this topic).

555
operating structure. At the same time that the profession argues for lawyers
556
to be better communicators, there appears to be a significant lack of
practical guidance on how to do so whilst avoiding the ethical dilemmas that
557
present themselves in the real world, especially in negotiations.
A second gap in the literature appears to be that there is virtually no
comprehensive discussion or analysis on the application of legal ethics to
certain negotiation tactics from a cross-jurisdictional standpoint. This may be
due to the fact that the profession recognises separate legal jurisdictions and
their respective codes of conduct. However, this view can be problematic. If
lawyers are part of a profession, it would seem that a consistent application
of a consistent code of ethics of the profession would go some way to
increasing consistent lawyer conduct in a positive way.
Current debate on the ethics codes and its application are on a single-country
basis with the United States possibly leading the way in terms of volume, consistent
analysis, and intensity of examining legal ethics. For example, there are numerous
articles extolling the virtues of the Model Rules of Professional Conduct (MRPC) in
555
See, eg, American Bar Association, Perceptions of the U.S. Justice System (1998)
<http://www.abanet.org/media/perception/perceptions.pdf> at 9 August 2010 (study and a
comprehensive nationwide survey on the U.S. justice
system among the general population consisting of a sample of approximately one thousand
respondents age eighteen and older); American Bar Association Section of Litigation, Public
Perception of Lawyers: Consumer Research Findings, above n 13 (finding, for example, that
consumers are still ambivalent about lawyers and lack public confidence in them due to such
factors as poor handling of basic client relationships and absence of attention to
communication including significant misunderstanding and mistrust of fees).
556
American Bar Association Section of Litigation, Public Perception of Lawyers: Consumer Research
Findings Forward, above n 13 (Robert A Clifford, Section Chair stating that [t]he image of lawyers is not just
a matter of professional or personal pride. It affects the publics belief in our justice system, and ultimately,
their faith in our democracy.).
557
See, eg, Norton, above n 19, 291 (stating that the ethics of bargainingmust be reconciled with the ethics
of the real world.).

the United States and an equal, or perhaps greater, amount of criticism regarding some
558
of its provisions, especially those which attempt to regulate deceptive conduct.
In Australia, there appears to be less debate about ethics codes, perhaps
559
due to the smaller size of the country and lesser number of lawyers. At the same
time, Australia faces similar issues with regards to the publics negative perception
560
of the legal system and its lawyers. A cross-jurisdictional analysis of ethics codes,
such as the analysis undertaken in Chapter 4 of this thesis, along with a discussion
of similarities and differences, would aid the profession in determining the optimal
and most ethically consistent set of standards to which the profession can
realistically adhere whilst serving a demanding global society.
As it stands today, lawyers appear to be caught in the contradiction between
bargainings practical norms, which provide rule[s] for maximizing long range client
561
and lawyer returns and ethical norms, which provide rules for representing
562
clients competently and diligently without resorting to meta norms to sort out the
563
contradictions or rank the order commands so as to provide a means for making
appropriate decisions on how to act. These apparent contradictions
558
Note: This is discussed in more detail in Chapter 4.
559
Note: In Australia, there is currently a debate on nationalising the Australian legal profession. Cf Roger
Wilkins AO, National regulation of the legal profession: An agenda for reform (2009) SSW Law Society
Journal; Australian Government Attorney-Generals Department, Council of Australian Governments (COAG)
Sational Legal Profession Reform (2009) <
http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_CouncilofAustralianG
overnments(COAG)NationalLegalProfessionReform> at 9 August 2010 (providing information on the history
of the national legal profession reforms in Australia and various task force papers).
560
See, eg, Chris Merritt, We need to change our culture, says Victorian DPP, The Australian (Sydney), 31
October 2008, 2; The Australian Law Reform Commission (1999) Discussion Paper 62: Review of the
Federal Civil Justice System, 5. Lawyers and practice standards 3 (hereinafter called Discussion Paper 62);
Lakhani, above n 268, 61 (discussing some of the issues facing lawyers in New South Wales in particular).
561
Robert J Condlin, Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute
Bargaining Role (1992) 51 Maryland Law Review 1, 71-72, 75-82, 84-84.
562
Ibid.
563
Ibid.

can be better aligned through an informed, objective, and cross-jurisdictional
analysis of the legal ethics codes.
A third gap in the literature is a lack of understanding of the various, and
sometimes, conflicting duties and loyalties of the legal professional when engaged in
negotiations. As Lerman argued, and this is even more relevant today, the
fundamental profit motivation of todays law firms and legal practitioners in general is
not necessarily reflected in the traditional model of lawyer-client relations upon which
564
the regulatory codes are based. This profit motivation may likely conflict with a
preferred unity of interest between the lawyers motivation and the clients
objectives. This conflict, then, may provide ample fuel for legal professionals to
consider using deception in carrying out their duties. From an economic standpoint, it
must be duly recognised that the client pays for the services and it is not
unreasonable to expect the lawyer to work on the clients behalf or hold a duty of
loyalty to the client at a premium relative to his/her duty to the courts, the justice
system and the public interest should there be a conflict. Perhaps it is precisely
because of the economic implications, not to mention the livelihood of the legal
professional, that a deeper and more comprehensive analysis of these duties might
aid the profession and the public in reconciling the nature of professional ethics
obligations and societal ethics obligations.
A final gap in the literature worth noting relates to a better and clearer
understanding of how to measure whether a negotiation is successful and whether the
use or non-use of deception plays a significant role in the perception of a successful
negotiation. This issue is important for several reasons. First, lawyers appear to
564

engage in successful negotiations every day as a regular part of their work and they
appear to successfully conclude deals on a variety of levels, which are then
acknowledged and enforced by the courts. If deception by lawyers is as rampant and
egregious as some would contend, then it would seem that there would be less
demand for lawyer services, fewer deals being made, or negotiated agreements
would frequently collapse. The counterargument may be that a lawyers use of
deception is rampant and egregious but clients are easily manipulated and the self-
regulating profession does not, in fact, effectively regulate such conduct. Even where
the literature discusses the success of a negotiation in terms of efficiency, the
good outcome, the strategic use of lies, getting an agreement (any agreement) or
even the absence of having used deception (and thus an ethical negotiation), there
is no consensus on objective criteria which would provide a sound basis for
assessing all negotiations. Whether it is necessary to subject a largely self-regulated
process such as negotiations to such analysis is arguable. However, some objective
criteria may provide a foundation from which to test a hypothesis that the use of
deception in negotiations, whether by lawyers or non-lawyers, is so negligible as to
not be worth the worry and on-going debate over lawyers being unethical and
deceptive in negotiations, at least at a level higher than normal as compared with
judges, business people, or society in general. One must at least be open to the
possibility that we, as a society and a profession, are making a mountain out of a
molehill and that continued judgment against the profession, without some
reasonable and objective research, only serves to denigrate the profession and
those who would pursue the noble intent and goals of the profession.

In the context of this thesis, I attempt to address at least three of these
gaps through the research questions outlined in Chapter 1. First, in addressing
the first research question of whether lawyers engage in deceptive conduct in
negotiations, I review the existing literature and research to develop a catalogue
of potentially deceptive behaviours by lawyers, especially in negotiation. In
addition, I examine the possible excuses or sources used by lawyers to justify
565
deceptive conduct, especially in negotiations. The results are then used to
focus on answering the second research question.
The second research question is related to how the legal ethics codes, a
key source of both acceptable and impermissible lawyer conduct, affect the use
of deception in negotiation. In order to answer the second research question, I
take a deeper look at the relationship between societal ethics, bargaining ethics,
and legal ethics to determine whether they might be incongruent and whether this
may impact the legal professionals use of deception in negotiation. This analysis
involves a cross-jurisdictional analysis of the legal ethics codes of a select group
566
of common-law jurisdictions. The purpose of this study is to determine whether
and how each jurisdictions legal ethics code regulates the use of deception in
negotiations and whether they address negotiations at all. The results of this
analysis provide insight into answering the third research question.
The third research question analyses whether the legal ethics code, which
serve as the primary regulatory mechanism by which lawyers conduct is controlled,
are successful in regulating deception in negotiation. In order to address the third
565
See Chapter 3 (Alleged Deceptive Behaviours of Lawyers) for more information.
566
See Chapter 4 (Efforts by Professional Ethics Codes to Regulate Deceptive Behaviours in
Negotiation) for more information.

research question, I conduct an original analysis of the legal ethics violation
cases in one particular common-law jurisdiction to see whether cases
involving deception in negotiation are prosecuted and how they are decided
567
under the jurisdictions legal ethics codes.
The combined findings and insights from each of the research
questions leads to the conclusion that the profession would benefit from a
set of strategic policy reforms to address the complex, multidimensional
issue of deception in negotiation. These integrated policy reform proposals
are the focus of the final research question and are outlined in Chapter 7.
In summary, through the four research questions and the contribution
they make to the field, this thesis provides a significant contribution to
effective policy reforms as well as a more stable foundation and analytical
framework for understanding this important yet understudied area of these
interrelated disciplines of law, ethics, and negotiation.
2.7 CHAPTER CO4CLUSIO4
This chapter provided a comprehensive discussion and analysis of existing
literature in the central research areas of this thesis. Commencing with a discussion
of competing perspectives and existing theoretical frameworks impacting the relevant
areas of research, this chapter established a conceptual framework for the proposed
research questions. Next, a synthesis of the literature review was followed by a
critical analysis of existing published scholarly research in light of the proposed
research questions. This included a discussion of the major findings, strengths,
weaknesses and potential gaps in the existing literature. Finally, this chapter
567
See Chapter 5 (The Success of Professional Ethics Codes in Controlling Lawyers
Deceptive Behaviour) for more information.

concluded with a discussion of how this thesis addresses some of these gaps and
provides a valuable, original contribution to the existing body of research whilst
recommending an integrated set of strategic policy reform proposals to address the
issues highlighted by the literature review and analysis of the research questions.
The next chapter begins to look more closely at the first research
question, namely whether lawyers use deception in negotiation and the
justifications for such behaviour.

Aug-10
CHAPTER 3
ALLEGED DECEPTIVE BEHAVIOURS OF LAWYERS
I do not see why we should not come out roundly and say that
one of the functions of a lawyer is to lie for his client....
568
~ Charles P Curtis
This chapter discusses the results of the research findings related to the first
research questions, namely whether lawyers engage in alleged deceptive behaviour,
especially in negotiation. First, this chapter presents the results of qualitative
research on the ways in which some lawyers appear to deceive clients. This chapter
also identifies how lawyers might attempt to justify potential deceptive behaviours.
This chapter concludes with a brief discussion of insights gained from the results and
analysis of this first research question, insights which form the basis of
recommending the policy reform proposals outlined in Chapter 7.
3.1 I9TRODUCTIO9
Chapter 1 established the research questions and hypotheses. The research
questions are aimed at addressing the following issues: 1) the types of potentially
deceptive behaviours that lawyers might use; 2) attempts by professional ethics codes
to control such behaviour in negotiations; and 3) whether attempts to control deceptive
behaviour in negotiations through professional ethics codes are successful.
568
Curtis, above n 246, 3. See also Alan M Dershowitz, The Best Defense (1982) (stating that lying,
distortion and other forms of intellectual dishonesty are endemic among judges...the courtroom oath
to tell the truth, the whole truth and nothing but the truth is applicable only to witnesses. Defense
attorneys, prosecutors and judges dont take this oath. They couldnt! Dershowitz was also highly
critical of some prosecutors in Manhattan, stating that prepared to close their eyes to perjury; to distort
the truth; and to engage in cover-ups - all in the name of defending society from the obviously guilty.).
One of the central and ongoing issues of the legal profession which is now really a turning point for the
profession is whether times have changed or whether they should change with respect to this
perception and consistent view of lawyers and how to go about affecting that change.

The results of addressing these issues leads towards the recommendation
for a strategic set of policy reforms as outlined in Chapter 7.
The first research question addresses the types of deceptive behaviours that
lawyers might engage in as alleged by scholars, the public, and other lawyers. As
discussed previously, legal professionals, even today, are perceived negatively
569
among the public it is meant to serve. As a quick summary, a 2002 survey in the
United States found that only 19% of Americans surveyed were very or extremely
confident about US lawyers and the US legal profession, the second lowest rating
570 571
behind the media in US consumer confidence. A 2003 study in Australia as well
as the Australian Law Reform Commissions review of the profession indicates a
572
similar lack of confidence with the Australian legal system.
Interestingly enough, in addressing the first research questions, the results of the
qualitative research appears to demonstrate a consistency with the 2002 American Bar
Association study mentioned above with respect to US lawyers and the legal profession.
As discussed in various sections of Chapter 2, research into actual negotiation behaviour
of legal professionals is marred by process, methodological and institutional obstacles,
not the least of which is the attorney-client privilege, duties of loyalty and time pressures
which accompany the practice of law. There are very few valid, statistically significant,
and therefore trustworthy studies regarding the
569
See Chapter 6, Section 6.5 (Studies of the Legal Profession Recommend Change) for more discussion
on this topic. See also W William Hodes, Truthfulness and Honesty Among American Lawyers: Perception,
Reality, and the Professional Reform Initiative (2002) 53 South Carolina Law Review 527, 528-530 (citing
various US sources that confirm the declining public trust in lawyers and the legal profession).
570
American Bar Association Section of Litigation, Public Perception of Lawyers: Consumer
Research Findings, above n 13, 6.
571
Dasey, above n 13 (The judiciary attracted confidence from just 15per cent of people, less than vets
(43per cent), teachers (34per cent), scientists (27per cent) and local shopkeepers (20per cent).)
572
Discussion Paper 62, above n 560, 3.

potentially deceptive or manipulative practices of legal professionals. This is true for the
United States as well as Australia as discussed in this thesis. However, anecdotal data is
available which sheds some light on whether lawyers engage in deceptive behaviours,
especially in negotiations. The following sections describe and discuss the results of
these anecdotal studies as reported mainly by scholars in the United States and Australia.
The most important point to take away from these studies is that lawyers do appear to
engage in deceptive conduct in practice, including in negotiation, such that the topic of
deception in negotiation is still ripe for research. These results are adapted from the
573 574
findings and analyses of Lerman (1990), Wetlaufer (1990),
575 576
Krivis (2002), Pengilley (1993) and Davis (1994), legal scholars and
practitioners who have undertaken the most detailed look at lawyers potentially
deceptive behaviour. Prior to discussing these studies, it is important to note that the
findings of the studies are reflective of the attitudes and behaviours of lawyers within
the studys jurisdictional context and is not meant to be reflective of all lawyers
across all jurisdictions. However, it is also important to note that in the context of the
common-law system that is the focus of this thesis, the tasks of non-transactional
lawyers is similar and these findings may be extrapolated as applying across
common-law jurisdictions and ripe for further research. The next section focuses on
how lawyers might deceive clients, either intentionally or unintentionally.
573
See Lerman, above n 60, 659.
574
See Wetlaufer, above n 31, 1219.
575
See Jeffrey Krivis, The Truth About Deception in Mediation (2002)
<http://www.firstmediation.com/truthmed_p.htm> at 9 August 2010. This article was also published in the 2002
edition of Alternatives, a newsletter by CPR.
576
See Warren Pengilley, But You Cant Do That Anymore The Effect of Section 52 on Common
Negotiating Techniques (1993) 1 Trade Practices Law Journal 113-129.

3.2 LAWYERS DECEIVI9G CLIE9TS
One of the major areas where lawyers tend to engage in potentially deceptive
conduct is with and on behalf of their clients. To some degree this is not surprising as the
majority of legal ethics codes discussed in this thesis, while expressly prohibiting
deception and misleading conduct with other practitioners and third parties, do not
contain explicit rules on such behaviour with clients or in the context of negotiation.
One of the most detailed analyses of how lawyers might be deceptive
is Lermans anecdotal study in the United States. Lerman conducted a small,
anecdotal study on ways in which lawyers reported lying to clients or other
577
lawyers. Of special mention is that these findings are reports from US
lawyers directly, who readily admit that they engage in such conduct as a
normal and acceptable part of legal practice. The results of Lermans study
are presented in the table below, followed by a discussion of key insights.

578
Table 3.1: Lawyer Deceiving Clients (Lerman 1990)
Note: The following is a summary chart of the findings of Lermans 1990 small and
informal anecdotal study on ways in which US lawyers say they deceive clients.
Categories and behaviours are as described by Lerman to ensure accuracy and clarity.
Category / Sub-category
Doing non-essential work

running the meter (then
billing for it)
577
578
Adapted from Lermans 1990 anecdotal study. See Lerman, above n 60, 659. Note: Lerman indicated
that many of these findings are from law firms and that the law firm environment tends to encourage such
deception.

Padding bills and double

billing
Meeting minimum firm

hours requirement
Premium billing /
itemization
579
Fortney, above n 382, 239 (discussing Lermans study and concurring with Lermans
findings on this topic).
580
Ibid.
581
Lerman, above n 60, 714. See also W William Hodes, Conference on Legal Ethics: What Needs
Fixing?: Cheating Clients with the Percentage-of-the-Gross Contingent Fee Scam (2002) 30 Hofstra Law
Review 767, 767-773 (describing a deceptive billing practice used by some contingent fee lawyers).

Non-contemporaneous
records
Charging clients for perks,

leisure, and admin time
Explaining the bill
2. Bringing in Business
Exaggeration of expertise
Business development

Who did the work
Making work look easier

or harder
Deception about what the

law is / Value of case or
lawyers fee
Strategic deception
5. Convenience and Control of Work Time

When a client calls
582
583
See, eg, Menkel-Meadow, above n 19, 778-779 (discussing how lawyers might also deceive by
silence and withholding information from the client).

Progress reports on work
Impact of workload on
advice
584
Lerman, above n 60, 739 (Some lawyers in Lermans study indicated that sometimes these potentially
harmful lies were the result of the pressure to stay on top of things and that clients have unrealistic
expectations or dont understand law practice.).
585
See, eg, Menkel-Meadow, above n 19, 777 (discussing these types of deceptions where lawyers might
fail to disclose risks and benefits of lawsuits and encourage settlement despite the clients best interest).

Table 3.1 identifies six major categories of deceptive behaviour as reported
by US practicing lawyers. Lermans study identifies the types of deceptive
behaviours that lawyers engage in with clients. Because lawyers tend to serve
multiple clients at the same time and have to juggle duties to the client, the courts,
opposing lawyers, and the public, lawyers could be said to engage in mini-
negotiations of all the various tasks required to handle a clients case. In the course
of zealous representation of the client, the lawyer-client relationship is, in itself, a
negotiation of communicating and completing key tasks to resolve the dispute. This
is likely more prevalent and true where the lawyer-client relationship model is based
on the revisionist model which argues for adherence to principles of client autonomy,
586
client-centred practice and informed consent. Lawyer-client relationships under
the revisionist model expose the lawyer to community expectations of such
relationships interspersed, and sometimes in competition with, the legal professions
expectations based on an adversarial model. Such relationships would also involve
greater interaction and communication with the client. As a result, the lawyer may
need to provide more explanations and justifications, which can create an
environment conducive to certain types of deception because of a lawyers profit
motivation, the economics underlying the lawyer-client relationship or because
587
clients do not always understand what lawyers do or why.
586
See Chapter 2, Section 2.3.8 (Theories of Lawyer-Client Relationships and Legal Negotiation) for a
detailed discussion on theories of lawyer-client relationships.
587
See eg, Linda Haller, Solicitors Disciplinary Hearings in Queensland 1930-2000: A Statistical Analysis
(2001) 13.1 Bond Law Review 1; Linda Haller, Disciplinary Fines: Deterrence or Retribution? (2002) 5 Legal
Ethics 152; Leslie C Levin, Building a Better Lawyer Discipline System: The Queensland Experience (2006)
9(2) Legal Ethics 187-210 (discussing that in many cases lawyers may lie or clients may complain simply
because they dont understand the nature of how lawyers must work within the legal system).

Lermans study was targeted towards lawyer deception of clients and was
based on anecdotal data in the form of stories used to describe situations where a
lawyer might engage in deception of clients, especially within an economic context.
588
Shaffer supports Lermans use of stories as adding value to the ethics discussion.
Lermans study is important when looking at future policy reforms as discussed in
Chapter 7 because the study confirms that lawyers do engage in deception, that such
behaviour has a negative impact on clients, and that the behaviour is, in part, the
result of a possible gap in the legal ethics codes, the way lawyers are taught to
practice through legal education, anddriven by the demands of the legal profession.
Menkel-Meadow concurs with many of Lermans findings and supports Lermans
study as raising important questions about the ability of legal ethics codes to prohibit
589
lawyers from lying to their clients. However, Menkel-Meadow argues that Lermans
study does not fully address a number of issues in the US related to lawyers lying outside
590
the market model of lawyering. These situations involve those that occur in private
591
practice but may not have a direct impact on the client, including, but are not limited
to, misrepresentation of expertise or experience, failure to disclose mistakes made in the
work product, and questionable arrests made by a district attorney who is seeking public
592
office in order to gain publicity. Menkel-Meadows
588
Thomas L Shaffer, On Lying for Clients (1996) 71 Motre Dame Law Review 195, 196-197, 203-
204 (discussing Lermans study and the use of stories as an important part of
understanding and discussing ethics).
589
Menkel-Meadow, above n 19, 761-762 (providing a brief summary of Lermans findings and
recommendations).
590
Menkel-Meadow, above n 19, 763-764 (referring to Professor Lermans analysis as based on the
recognition that law is a business while Menkel-Meadow discusses the topic from law as a profession
outside of the market-based view).
591
Menkel-Meadow, above n 19, 775-777 (distinguishing lawyer lying scenarios in public or non-market
lawyering from those in fee-for-service lawyering).
592
Ibid. Some of these are addressed in Lermans findings as related to its impact on clients.

593
recommends a golden rule of candour for these types of scenarios as well
as other types of lies that lawyers might use outside of a competitive market
594
model of legal services.
Despite some criticisms, Lermans study provides a foundation from which to
draw some conclusions, one being that more in-depth exploratory research would
be beneficial in identifying additional situations where lawyers might engage in
595
deception and confirming Lermans findings. These comments also support the
view that US lawyers do appear to engage in deception and that such deception is
likely exacerbated by a competitive and global market economy for legal services.
While Lermans study was targeted towards lawyer deception of clients, these
behaviours can be extrapolated to apply to similar deceptions that may occur between
lawyers, meaning that just as a lawyer might deceive a client regarding the status of a
case, billing, settlement negotiation offers and expertise, lawyers may deceive each
other and their opponents along the same lines or be tempted to deceive the court in
furtherance of their clients case under the guise of zealous representation. As such,
Lermans findings have value in confirming that lawyers themselves acknowledge the
use of various forms of potentially deceptive behaviours.
3.3 LAWYERS JUSTIFYI9G DECEPTIVE BEHAVIOUR
In addition to Lermans informal research, Wetlaufer conducted an informal
study of US lawyers behaviours and the justifications that some US lawyers give for
engaging in deceptive conduct. The following table contains results adapted and
593
Menkel-Meadow, above n 19, 770-774 (Lawyers should reveal to their clients that which they would
want revealed to them if they were clients.).
594
Menkel-Meadow, above n 19, 775-779. See also Terry, above n 548 (discussing the impact of
lawyers being seen as service providers rather than professionals).
595
Menkel-Meadow, above n 19, 778-779 (We need an exploratory study in this field, as Professor
Lerman has done in the market context, before we can fully canvass the issues.).

extracted from Wetlaufers findings of ways in which lawyers appear to excuse,
justify, or explain deceptive behaviours in negotiations.
Table 3.2: Catalogue of Statements and Justifications for Deceptive

596
Conduct by Lawyers (Wetlaufer 1990)
Note: The following is a summary chart of the findings of Wetlaufers 1990
US informal study on ways in which lawyers justify that lying is permissible
597
in negotiation. Categories and behaviours are as described by
Wetlaufer to ensure accuracy and clarity.
Category
I didnt lie
I lied, if you insist on

calling it that, but it
was
I lied but it was legal.
I lied but it was on an

ethically permissible
598
subject.
I lied but it had little or
596
See generally Wetlaufer, above n 31.
597
Wetlaufer, above n 31, 1235-1236 (making the distinction between law and ethics; arguing that simply
because the rules of legal ethics may permit deception does not mean it is ethically permissible).
598
Wetlaufer, above n 31, 1243 (It is in the nature of law that it will not, indeed cannot, undertake to prohibit
all forms of bad conduct. In any event, the fact that some of these lies will not support a suit for civil
remedies, standing alone, is no indication that we regard these lies as ethically permissible.).
599
Wetlaufer, above n 31, 1243 (describing white lie as those purpose is said to only to smooth the seas,
to grease the wheels of discourse and commerce, perhaps to create the illusion of relationship where none
really exists, and, in these ways, to enhance the possibility of agreement.).

Category
no effect.
I lied, but it was justified

by the very nature of
things [negotiations]
I lied but it was justified
by the nature of my
relationship to the
victim.

by the special ethics of
lawyering
The lie belongs to

someone else
600
Wetlaufer, above n 31, 1243 (saying that speakers who invoke this excuse are referring to those which
the law regards as permissible and not actionable (citing Model Rules of Professional Conduct, Rule 4.2,
commentary at 89-90 (Discussion Draft 1980) (Chicago: American Bar Association))
601
Wetlaufer, above n 31, 1248 (discussing why this particular justification is not warranted because the
rule of the game with regards to negotiation are within the definition of bona fide rules which warrant
credibility or compliance).
602
Wetlaufer, above n 31, 1255 (In this form, the lawyers' duty to their clients entails an affirmative
obligation to perform all lawful acts without regard to ethics.).
603
Wetlaufer, above n 31, 1256 (quoting Harry T Edwards and James J White, Problems, Readings, and
Materials on the Lawyer as Megotiator (1977) 373-89, 378.). See also Curtis, above n 246, 3-23 (saying that
... one of the functions of a lawyer is to lie for his client.); Arthur Applebaum, Professional Detachment: The
Executioner of Paris (1995) 109 Harvard Law Review 458, 486 (Lawyersas serial liars and thieves. He
would observe that lawyers - good lawyers repeatedly try to induce others to believe in the truth of
propositions or in the validity of arguments that they themselves do not believe, and he would observe that
lawyers - again, good lawyers - often devote their skills to advancing the unjust ends of rapacious clients);
Evan Whitton, Immoral ethics in an immoral system (2006) 64 Living Ethics 8
<http://www.ethics.org.au/about-ethics/ethics-centre-articles/living-ethics-newsletter/pdfs/issue-64-article-
1.pdf> at 9 August 2010 (discussing several quotes aimed at showing how the concept of adversary ethics is
based on a fallacy).

Category
I lied because my
opponent acted badly

by good consequences
Wetlaufers informal study on ways in which lawyers in the US justify the use of
deceptive behaviour in negotiation is important for two primary reasons. First, the
sample statements and justifications highlight the paradox that sometimes exists
607
between ethics in the general philosophical sense (or social ethics), the rule-based
ethics of the legal system as codified in the legal ethics codes, and the bargaining
604
605
Wetlaufer, above n 31, 1265 (asserting with regards to this excuse that [t]he state has neither
compelled nor expressly permitted them to lie. The most that the lawyers can say is that certain lies have
not been prohibited.).
606
Wetlaufer, above n 31, 1268 (The golden rule is "do unto others as you would have them do unto you;"
it is not "do as you believe, or fear, they may be doing to you.").
607
See Chapter 2 for a more detailed discussion on the various philosophical models of ethics. See also
Graham, above n 138.

608
ethics of the negotiating world. In reviewing the statements and
justifications above, it seems clear that lawyers are willing to admit that under
all general notions of what is right and wrong (meaning as compared with
societys general view), deception is clearly not appropriate while, at the same
time, arguing that deception is permissible under the legal ethics codes.
The rule-based ethics of the legal profession permits lying in some
circumstances under the guise of zealous representation or due to the lawyers
role in society. Such statements and justifications clearly reinforce the standard
conception of the lawyers role with its dual principles of non-accountability and
609
partisanship that has been widely discussed and debated. In other words,
610
while society in general may condemn deception, lawyers are constantly
thrust into gray areas where societal notions of right and wrong collide with the
legal systems obligation to zealous representation of clients, delivering justice,
and protecting the public interest using the various, sometimes conflicting and
611
inconsistent, rules under which the legal system operates.
Many of the justifications for the use of deception point directly to the lawyers
understanding or perception of acceptable conduct under these professional ethics
rules of the legal system, even if the rules do not explicitly allow such conduct. The
justifications lawyers use for using deception as they relate to the legal ethics rules
include: 1) there was no intent to lie; 2) it was not ethically impermissible to lie;
608
See Chapter 2 (Review of Literature) for a more detailed discussion on bargaining ethics.
609
See Chapter 2 for a more extensive discussion on the standard conception of lawyers. See also
Parker and Evans, above n 156, 14; Luban, above n 157.
610
This is debatable. See, eg, Lakhani, above n 7 (discussing the various interpretations on the
morality or legality of lying).
611
See, eg, Levin, above n 587, 196 (Lawyers are unquestionably engaged in a business, but they are not
the same as the businesses of car salesmen or shopkeepers. Lawyers have competing ethical duties to the
courts, to their clients and to the public. They are paid to make complex judgment calls every day.)

3) it was strategic speak or lawyer talk and therefore acceptable; 4) there is
no duty of disclosure; 5) it was only puffing; and 6) lying is permissible within
612
the rules of the game.
Second, the statements and justifications in Wetlaufers findings highlight the
extent to which acceptable forms of deception under conventional negotiation practice
have crept into the lexicon and practice of lawyer negotiations. On the one hand, legal
ethics codes generally condemn any form of deception in any forum, including
613
negotiations. On the other hand, negotiation theory and principles readily
acknowledge, and sometimes expect, that deception is part of the negotiations
614
dance. In addition, most legal ethics codes are silent with respect to how lawyers
should act when they negotiate or silent on the extent to which negotiation is a distinct
615
role of lawyers. This silence has as much impact on lawyer behaviour as rules which
explicitly tell lawyers what is acceptable or unacceptable in other areas of legal practice.
Therefore, if lawyers engage in the process of negotiation, it would seem that they must,
by way of being immersed in the culture of negotiation combined with the lack of explicit
guidance in the ethics codes, be forced to use certain forms of deception if they are to be
successful in the zealous representation of their
616
clients.
612
Wetlaufer, above n 31.
613
See Chapter 4 (Efforts by Professional Ethics Codes to Regulate Deceptive Behaviours in Negotiation) for
more information on a comparative analysis of select common-law legal ethics codes.
614
Note: The term negotiations dance is used synonomously with thinking of negotiations as a game or a
process where certain conduct, such as deception is expected and accepted as normal. See, eg, Wendi L
Adair and Jeanne M Brett, The Negotiation Dance: Time, Culture, and Behavioural Sequences in
Negotiation (2005) 16(1) Organization Science 33-51 (discussing the negotiation dance across various
cultures).
615
See Chapter 4 (Efforts by Professional Ethics Codes to Regulate Deceptive Behaviours in Negotiation) for
more information on a comparative analysis of select common-law legal ethics codes.
616
See, eg, White, above n 60; But see Wetlaufer, above n 31, 1243 (arguing that all forms of deception are
lying and should not be condoned).

Wetlaufers study points to numerous statements made by lawyers, which
are used to justify the use of deception as acceptable under prevailing negotiation
theory and principles. These statements include: 1) everybody does it; 2) it is not
legally forbidden; 3) it was internal to negotiations so it is acceptable; 4) lying is
necessary and useful in negotiations; and 5) it is part of the rules of negotiation.
The findings of Wetlaufers article seem to allude to the tensions between what
is ethically permissible under the legal ethics codes, what is legally forbidden, and what
is expected under generally accepted conventions of negotiation practice.
Understanding these potentially conflicting sets of guidance on negotiation behaviour is
critical to determining whether the rules of legal ethics can ever be successful in
managing the deceptive behaviours of legal professionals in negotiation.
3.4 DECEPTIO9 I9 9EGOTIATIO9 A9D PERSO9AL I9JURY
A third source of research on the potentially deceptive behaviours of legal
professionals in negotiations is Davis 1994 Australian survey of the beliefs and
attitudes of personal injury solicitors in Queensland, Australia regarding negotiation
617
behaviour. The table below shows some of these potentially deceptive
behaviours followed by a discussion of key insights to consider from Davis study.
Table 3.3: Potentially Deceptive Behaviours of Personal Injury

618
Lawyers in 9egotiation (Davis 1994)
Note: The following is a summary chart of Davis view of the potentially
deceptive behaviours or statements used by personal injury lawyers in
Australia based on his 1994 study.
Deceptive Behaviour / Statement

! Misrepresent the strength of your position to get a good or better
negotiated result;
617
See Chapter 2, Section 2.5.5 (Research About Lawyers Bargaining Behaviour) for an in-depth
discussion of Davis study.
618
Adapted from Davis, above n 126.

10
Deceptive Behaviour / Statement
! Deliberately delay cases to increase the financial pressure on

plaintiffs so that they become more willing to settle;
! Always exaggerate an offer, saying its your final offer
Davis findings are specific to personal injury solicitors in Queensland, Australia.
His findings on the extent to which personal injury lawyers feel they can use potentially
deceptive negotiation behaviours seems consistent with adherence to acceptable forms
of deception as understood or perceived through the legal ethics codes, customary
619
negotiation practice, or negotiation theory and principles. Davis study found that less
than 50% of the respondents actually agreed that such potentially deceptive behaviours
were acceptable or necessary. However, in the context of personal injury negotiations, a
substantial number of both plaintiff and defendant lawyers seem to condone some form
of deception to further their clients interests, possibly in contravention of the rules of
620
legal ethics in the prevailing jurisdiction.
One conclusion from Davis study could be that where duty ethics (e.g. law or
legal rules) collide with community ethics (e.g. negotiation conventions) or even end-
result ethics (e.g. zealous representation of clients), lawyers seem to feel that the rules
of legal ethics sometimes must bow to prevailing negotiation ethics which condone
certain forms of deception. For example, in Davis study, the prevailing rules forbid any
form of deception in practice. However, the results of Davis study indicate that
619
See Chapter 2, Section 2.2.2 (Deception as a Negotiation Strategy) for more information. The
findings in this study are also consistent with those of Lerman and Wetlaufer on the behaviour of
lawyers in the United States.
620
See, eg, Legal Profession Act 2007 (Qld) and the Legal Profession (Solicitors) Rules 2007 (Qld)
(Statement of general principle) which basically do not condone deception in any form and do not have
exceptions the use of deception in negotiation. In this case, personal injury solicitors in this study are following
customary negotiation practice because the ethics codes do not explicitly forbid the use of deception in
negotiation.

personal injury solicitors in Queensland do engage in some form of deception as
they find it necessary to do so in order to zealously and successfully represent
their clients in personal injury matters. This demonstrates a potential clash
between expected conduct under the legal ethics codes for all solicitors (no
deception allowed) and the type of negotiation behaviour expected of personal
injury lawyers in the same jurisdiction (some deception allowed).
As Davis point out in discussing the negotiation behaviour of personal
injury lawyers in Queensland, Australia, many assert that there is a difference
621
between exaggeration, misrepresentation, and deception. It appears that
because personal injury lawyers in Queensland perceive a difference, they
condone such practices even when the legal ethics rules of the Queensland
622
jurisdiction make no such exceptions for possible deception in negotiation.
This is an example of how overlapping and conflicting ethical standards can
create an environment of acceptable yet unethical conduct within the legal
profession, conduct which may go undetected and unpunished.
While such conduct may not be punished or even be considered a minor
offence, the behaviour does eventually impact lawyer-client and lawyer-lawyer
relationships as well as the publics perception of lawyers, the legal profession, and
the way law is practiced. As Menkel-Meadow argues, negotiation orientations can
621
Davis, above n 126, 747 (This seems to imply that lawyers are either aware of the extent to which
exaggeration and misrepresentation are permissible as part of negotiations or attempting to justify their
actions whilst knowing they are not permissible.).
622
See, eg, Legal Profession Act 2007 (Qld) and the Legal Profession (Solicitors) Rules 2007 (Qld)
(Statement of general principle) which basically do not condone deception in any form and do not have
exceptions the use of deception in negotiation. Cf Model Rules of Professional Conduct (MRPC), Rule 4.2,
which actually appears to condone such behaviour as long as it is not to the degree of fraud.

623
affect negotiation results. In other words, ones dominant negotiation style can
impact the success or results of a negotiation as well as the perceptions about the
negotiator. For example, if a lawyers negotiation orientation is adversarial, the lawyers
mindset is likely geared towards maximising individual gain at the expense of satisfying
underlying needs. In turn, this means that the lawyers behaviour is likely to be
competitive, resulting in solutions which likely involve narrow compromises rather than
624
creative solutions that address the problem holistically.
In sum, Davis study confirms the use of deception in personal injury
negotiations among personal injury lawyers in Queensland, Australia. In
addition, this study highlights the need to address the extent to which an
adversarial system implicitly encourages the use of deception in personal injury
negotiations through a dominant negotiation orientation. Another area of
deception is negotiation is addressed under consumer protection laws such as
the Trade Practices Act, 1974 (Cth) of Australia.
3.5 ACTIO9ABLE DECEPTIO9 A9D THE TRADE PRACTICES ACT, 1974 (CTH)
A fourth source information on the potentially deceptive behaviours of legal
professionals in negotiations is Pengilleys analysis of how s 52 of the Trade

625
Practices Act, 1974 (Cth) (TPA) might affect eight (8) common negotiating
623
Menkel-Meadow, above n 215, 759-760 (discussing Orientation(RA)Mind-set(RA)
Behavior(RA) Results, a general model depicting the relationship between negotiation
orientation (eg, adversarial) to negotiation results (e.g., narrow compromises)).
624
Ibid.
625
Trade Practices Act 1974 (Cth) s 2 (stating the purpose as to enhance the welfare of Australians through
the promotion of competition and fair trading and provision for consumer protection.). See also Australian
Competition and Consumer Commission, Professions and the Trade Practices Act (2010) 19-20
<http://www.accc.gov.a u/content/item.p html?itemld=926503&nodeld =71b6c165a bc78f1a60fOa
1643c9367&fn=Professions%20and%20the%20TPA.pdf> at 31 July 2010 (specifically reinforcing the
obligation of the professions to refrain from deceptive and misleading conduct when dealing with clients).
This latter document is an updated document highlighting and reinforcing the application of the TPA on all
professions in Australia, including the legal profession.

techniques of lawyers in Australia. Pengilleys perspective is about the
potentially deceptive behaviour of legal professionals in Australia as
viewed by the Trade Practices Act.
The Trade Practices Act is akin to consumer protection legislation and is an
important consideration in this chapter because it recognises some common legal
negotiation behaviour, as found among Australian legal practitioners in this case,
as potentially falling within the actionable categories of deception because the
TPAs view is that lawyers are engaged in the business of providing legal services
to consumers and therefore are also subject to consumer protection laws.
Table 3.4 shows a summary of certain negotiating techniques which
may now be legally actionable under section 52 of the Trade Practices Act
(Cth) followed by a discussion of key insights.
Table 3.4: Legally Actionable Deceptive Behaviour in 9egotiation under s 52 of

626
Trade Practices Act (Pengilley 1993)
Note: The following is a summary chart of the findings of Pengilleys analysis

of the impact of section 52 of the Trade Practices Act on eight common
negotiating techniques. The following chart indicates those practices which
are considered actionable under s 52 and thus would be considered illegal
under s 52 of the Trade Practices Act. Categories and behaviours are as
described by Pengilley to ensure accuracy and proper credit.
Exaggerations and
Product Puff
Expressions of Opinion
Claimed as Opinion
Only
626
Adapted from Pengilley, above n 576, 113-129 (discussing the impact of Section 52 of the
Trade Practices Act on making certain negotiation techniques illegal under the act as
misleading or deceptive or likely to mislead or deceive).

Silence or Lack of
Disclosure
Disclaimers Limiting or
Negating Misleading
Representations
Representations as to
Financial Stability or
Availability
Particular Situation Post
Agreement using Side
Letter
627
See, eg, Stanton v AMZ Banking Group Ltd (1987) ATPR 40-755, at 48, 193 (holding that [a] statement
which involves the state of mind of the maker ordinarily conveys the meaning (expressly or by implication)
that the maker of the statement had a particular state of mind when the statement was made and, commonly
at least, that there was a basis for the state of mind. If the meaning contained in or conveyed by the
statement is false in that or any other respect, the making of the statement will have contravened s.52(1) of
the Act.). In Stanton, a bank employee who offered an opinion (represented) that a certain person would not
do the dirty to anyone when the person did in fact do the dirty was found not liable for misleading or
deceptive conduct because he believed what he said, the opinion given was genuinely held, and there was
no reason to suggest that the opinion was incorrect.
628
See, eg, McMahon v Pomeray Pty Ltd (The Balmain Mightclub Case) (1991) ATPR 41-125 (holding that
that silence may constitute misrepresentation and will do so if its effect is to convey half-truth. If what is
disclosed creates a half-truth, then there is an obligation to disclose the balance of the relevant factors so that
the whole truth is available. Here, the failure to disclose councils limitation of hours constituted misleading or
deceptive conduct.).
629
See, eg, Bikane v Metaf Pty Ltd (1988) ATPR (Digest) 46-041 (holding that pre-incorporation
misrepresentations are thus treated as having been made to the directors after incorporation if they are not
corrected. If post-incorporation directors are influenced by pre-incorporation misrepresentations [those not
corrected] and the subsequently incorporated company enters into a contract to its detriment because of
these misrepresentations, the subsequently incorporated company has an action under s.52 in respect of the
misrepresentations made.).

Fictitious Prices or
Fictitious Buyers
Without Prejudice
Statements Made During
Negotiations
Pengilleys analysis of s 52 of the Trade Practices Act 1974 (Cth)
points out several categories of negotiating behaviour by Australian lawyers
that may previously have been considered acceptable but is now considered
legally actionable under the TPA, outside of the legal ethics codes. With
regards to the categories of potentially actionable behaviours under the Trade
Practices Act 1974 (Cth) above, two aspects are worth mentioning.
First, section 52 of the Trade Practices Act appears particularly relevant
for attempting to control misrepresentation or lying in business practices as it
prohibits businesses from engage[ing] in conduct that is misleading or deceptive
631
or likely to mislead or deceive. Through its broad application, section 52
certainly affects the negotiation behaviour of legal professionals, whether they
are in the business of legal practice, represent businesses or engage in
commercial transactions. The message of s 52 appears to be one of broad
application and zero tolerance for misleading or deceptive practices.
630
See, eg, Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd. (1990), Unreported, Federal
Court of Australia, No G243 of 1990 (holding that even if negotiation conference is conducted on a without
prejudice basis, evidence that misleading or deceptive conduct was engaged in during such conference will
be admissible, as without prejudice privilege does not extend to permit conduct of this kind.).
631
Trade Practices Act 1974 (Cth) s 52.

In the context of this thesis, the TPA is one example of how legislation,
either in conjunction with or apart from legal ethics codes, can impact the
negotiation behaviour of legal professionals and why the profession must
take steps to address this issue.
3.6 COMMO9 DECEPTIVE TECH9IQUES I9 9EGOTIATIO9
Finally, Krivis highlights the most common, potentially deceptive tactics used
632
by US attorneys in negotiation based on his experience in the United States.
Krivis categorises these tactics into six major areas. Some of these are common
to the behaviours listed in the sections above while others are specific to Krivis
experience with primarily US lawyer-negotiators. Consistent with previous
sections, Table 3.5 below highlights these categories with a brief description of
the technique. This is followed by a discussion of key insights.
633
Table 3.5: Deceptive Tactics Used by Attorneys in 9egotiation (Krivis 2007)
Note: The following is a summary chart of Krivis view of the deceptive

techniques attorneys in the US most commonly use in negotiation. Categories
and behaviours are as described by Krivis to ensure accuracy and clarity of
the techniques as described by Krivis.
Concealing the
willingness to settle/
bottom line
Making inflated demands
632
Krivis, above n 575 (highlighting some common allegedly deceptive techniques used by attorneys in
negotiations, ones that they have come to rely on.).
633
Ibid.

Exaggerating strengths
and weaknesses
Concealing client
intentions
Claiming lack of authority
Failing to volunteer
relevant facts
Krivis view of the most common deceptive techniques used by lawyers in the
634
United States is based on several important factors as to why lawyers might
engage in as well as attempt to justify the use of potentially deceptive behaviour.
One key factor for why lawyers might engage in deceptive behaviour is the
competitive market in which the business of law takes place, where even professional
standards seem to come under attack. This is often an overlooked aspect of rendering
legal services to clients. While it is true that law traditionally has been viewed as an elite
profession that provides a type of social service to the public, today it is most
634
Note: Krivis article pertains primarily to lawyers in the United States. However, these
would most likely apply to lawyers in most common law jurisdictions operating under the
adversarial system of justice.

likely seen as simply a service unlike any other service purchased by
635
consumers in a competitive, market-driven economy.
As Krivis points out, competition in our society promotes an atmosphere of
freedom of choice and enables buyers and sellers to define the limits of
636
acceptability. As argued by many, it is this same competitive, market-driven
economy that is negatively impacting the revered and high professional standards
that both lawyers and the public expect of a profession designed to serve the public
637
good. In addition, this same competitive environment rewards those who get the
best deal and are able to do so within the limits of acceptability. If competition and
profit are key drivers, and competition is conducted with an adversarial mind-set, the
limits of acceptable conduct may change both within the legal system and within the
society that receives these legal services. It may allow for certain deception in
negotiation or other areas of legal practice as long as it does not cross the limits of
acceptability. As Terry notes, the combination of globalisation and the lawyers-as-
service-providers paradigm may cause lawyers to be subject to regulation from more
638
and more entities.
A second key factor in lawyers using deception is that lawyers who operate
within this competitive environment attempt to get the best deal for their client. Krivis
compares litigation to a game of cards where the best hand wins and where
635
See, eg, Terry, above n 548, 190-193 (discussing the new paradigm of lawyers as service providers and
the ramifications on the legal profession). Cf Kronman, above n 547; Davis, above n 171.
636
Adapted from Krivis, above n 575.
637
See, eg, The Honourable Justice Michael Kirby AC CMB, Legal Professional Ethics in Times of Change
(1996) <http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_stjames2.htm> at 9 August 2010; Merritt, above n
560, 2.
638
Terry, above n 548, 205-208 (discussing the ramifications of the service provider paradigm for legal
services in the future). Terry argues that lawyers should embrace this change or risk being marginalized
in a world it does not know or understand and much of its rules arguments could be viewed by others as
irrelevant. (Ibid at 208).

negotiations especially are a matter of [t]echnique and skill rather than a
great hand and where a good card player can improve his winnings if the
639
other player overestimates his hand. This is commonly associated with a
distributive model of negotiations where the poker player bargaining ethic
640
prevails. This poker player ethic relies on certain forms of deception.
In addition, the distributive model of negotiation is common and acceptable
such that lawyers who do not, at some point, engage in value-claiming, may find
themselves getting a lesser bargain than their client anticipates. Regardless of
whether lawyers operate within a public-service paradigm of legal practice or under
a more market-driven, service-provider paradigm, it is reasonable to conclude that if
lawyers continue to think of and conduct legal negotiations with this competitive,
distributive mindset, then deception in negotiation will continue unless there is some
intervention in the form of policy reforms.
In summary, Krivis US-centric view of the common deceptive negotiation
behaviour by lawyers is consistent with those described by Lerman and Wetlaufer in the
U.S. context as well as those discussed by Davis and Pengilley in the Australian context.
Krivis assessment is important in understanding the underlying pressures and interests
which drive such behaviour in legal negotiations and informs how ethics may best play a
part in controlling such behaviour. Furthermore, while the studies are from different legal
jurisdictions, it is important to note that they involve the same common-law system where
the tasks and pressures faced by lawyers are similar. As such, these findings could be
extrapolated to other areas of the same common law
639
Adapted from Krivis, above n 575.
640
See Chapter 2, Section 2.3.6 (Theories of Bargaining Ethics) for a detailed discussion on this topic.

system as well as to other common law jurisdictions. The next section provides a
perspective of deceptive conduct as viewed under formal legal classifications.
3.6.1 Legal Classifications of Deceptive Conduct
As discussed in Chapter 2, some scholars and practitioners see a distinction in
definitions of lying and deception with regards to how they are applied to legal
641
practitioners. These distinctions likely represent gradations in how law might view
certain types of deception and lies, gradations which do not appear formally in the
legal ethics codes. The following table contains results adapted and extracted from
the technical, legal definitions of certain types of deception.
Table 3.6: Legal Terms of Deception
Note: The chart below describes various potentially deceptive practices, definitions
and related behaviours or conduct as may be manifested during legal negotiations,
with the intent of using legal terminology to define such behaviour, where applicable.
Some have potentially greater legal ramifications than others for the parties involved
yet nearly all of them have grave ramifications for the legal practitioner who is found
to have committed an ethical violation involving these practices.
Term
Falsification
Fraud (General)
641
See, eg, Guernsey, above n 34, 105 (stating that a lawyers definition of lying may be stated as a
statement made with the intent to deceive which purports to state the existence, in unequivocal terms, of
facts and law contrary to the declarants express knowledge.).
642
Adapted from Lewicki et al, above n 128, 168-170.
643
Butterworths Concise Australian Legal Dictionary, above n 643, 182.

Term
Fraud in the
inducement
Fraud in the
inception
Fraud in the
factum
Lie / Lying by
commission
644
The Random House Dictionary of English Language, above n 33, 1109.
645

Term
Lying by
omission
Misleading
Misrepresentation
Innocent
misrepresentation
646

Term
Fraudulent
misrepresentation
Negligent
misrepresentation
Perjury
Puffery
647
648
649
650

3.6.2 Summary Analysis of Lawyers Most Common
Deceptive Behaviours in 9egotiation
To date, the information in this chapter shows that some lawyers appear to
use many common, yet potentially deceptive behaviours, even in negotiation. These
behaviours, in some cases, appear to be considered not only legally acceptable but
also acceptable under certain legal ethics codes and community standard of legal
negotiation behaviour, such as in the case of personal injury cases.
In reviewing these negotiation behaviours, it is important to keep two
things in mind. First, lawyers do work under certain sets of rules and codes of
conduct in the adversary system that seems to allow for and encourage
behaviour that may be perceived as deceptive and dishonest. In addition, as
stated in Chapter 1, some lawyers may engage in transactional or non court-
related work, such as document production, that does not involve negotiation
or issues related to deception in negotiation.
The second point worth noting is nearly all of the alleged deceptive
behaviours relate directly or indirectly to the structure of how most law firms operate,
651
namely the billable hour paradigm or as stated by Lerman, the profit motivation
factor at the heart of most law firms and most businesses. Nearly all the categories of
deception in the existing literature can be linked to lawyers attempting to meet
minimum billable hour requirements so as to maintain their jobs, seek promotions,
live a particular lifestyle, pay debts, and remain employed. In addition, even where
651
Lerman, above n 60, 671-672, 755-756 (stating that the engine that drives the machine
is profit motivation.). See also Herbert M Kritzer, The Dimensions of Lawyer-Client
Relations: Notes Toward a Theory and A Field Study (1984) American Bar Foundation
Research Journal 409, 410 (confirming the conclusion of recent studies that "what is in the
lawyer's economic interest may not be in the client's interest"); Thomas D Morgan, The
Evolving Concept of Professional Responsibility (1977) 90 Harvard Law Review 702, 706-
712 (discussing the conflicting aspects of the Code of Professional Responsibility in
appearing to give priority to the lawyers' interests over the interests of clients and the public).

more truthful, or at least less deceptive, options exist, the research seems to show
that lawyers will continue to engage in certain deceptive behaviours and attempt to
652
justify it based on their perception that the legal ethics rules permit such conduct.
As the American Bar Association (ABA) Section on Litigation study pointed
out, the qualities which the public attributes to lawyers as positive (e.g.
aggressiveness, competence in their knowledge of the law and applying it in
653
service of the client, competitive) may be the same qualities which lead to
654
public perceptions of lawyers being greedy and manipulative. This seems
consistent with the distinctions between the primarily distributive and integrative
models of bargaining, as well as Williams findings on the characteristics of
655
cooperative/effective versus competitive/effective negotiators.
The adversarial model of justice that is so prevalent in nearly all common law
jurisdictions appears to adopt a near-strict distributive bargaining model as seen by
656
the literal reading of codes and rules. Distributive bargaining is a competitive, fixed
pie, win-lose model of negotiation in which deception is the informational bargaining
657
chip. It is a game mentality in which winner takes all. If winner take all is still the
primary modus operandi of most law firms and endorsed by the profession and the
courts, then deception in negotiation is likely to be considered acceptable
652
See, eg, Lerman, above n 60, 745-749 (discussing this point in greater detail and looking at whether
deception can be regulated given the reality of the profession).
653
Research Findings, above n 13, 17-20.
654
Research Findings, above n 13, 7-16
655
656
Menkel-Meadow, above n 215, 765-768.
657
Menkel-Meadow, above n 215, 765-768; Williams, above n 202, 20-26; Menkel-Meadow, above n 19,
775-780 (describing various scenarios where lawyers may use deception in practice).

behaviour, consistent with the findings as presented by scholars and the recent ABA
study.
A lawyer stated through an Internet blog that [w]hat lawyers believe about
practicing law has a huge impact on how we behave, and how we behave has
658
significant influence on how we are perceived. In order words, if lawyers feel they
must deceive or mislead others in the practice of their profession in order to be
659
effective and successful, the publics perception of lawyers will tend to confirm this
notion. To extrapolate further, if a lawyers bread and butter on a daily basis involves
some form of negotiation and he/she believes that deception is appropriate and
condoned in these interactions, then this has an enormous impact on how he/she
views the practice of law and the profession as well as how such views are
manifested in his/her interactions with all major stakeholders of the legal system.
This chapter presented the results of several anecdotal studies and practitioner
insights, both from the United States and Australia, which confirms that lawyers do
engage in deceptive behaviour in general as well as in negotiations. The results of
Lermans small-scale anecdotal study almost mirror the American Bar Association
660
Section on Litigations study. In addition, Wetlaufer, Davis, and Krivis confirm the
potentially deceptive behaviour by lawyers in negotiation. It is ironic that given the
opportunity, lawyers are honest about their alleged dishonesty even if they disagree that
such behaviour is really dishonest, particularly where the legal ethics codes are
658
Public perception of lawyers (2006) <http://lifeatthebar.wordpress.com/2006/10/25/public-
perception-of-lawyers/> at 9 August 2010.
659
This might apply to any profession but affects lawyers more than most because of their standing in the
community.
660
Research Findings, above n 13.

661
concerned. The majority of professional ethics codes studied in this thesis
dictate that lawyers shall not lie or deceive under any circumstance but current
research reveals that lawyers can and do, whether they wish to or not.
The next chapter addresses the second research question, namely whether
professional ethics codes address and provide an enforcement mechanism to control
deceptive behaviour by lawyers in negotiation. The focus of Chapter 4 is a cross-
jurisdictional analysis of the professional ethics codes in select common-law legal
jurisdictions, rules designed to regulate lawyers behaviours in practice.
661
Behaviour in Negotiation) for a detailed discussion on this topic.

10
CHAPTER 4
EFFORTS BY PROFESSIO1AL ETHICS CODES
TO REGULATE DECEPTIVE BEHAVIOURS I1 1EGOTIATIO1
...there is such a gap between how one lives and how one
ought to live that anyone who abandons what is done for what
ought to be done learns his ruin rather than his preservation.
662
~ :iccolo Machiavelli
This chapter describes and evaluates the results of the qualitative research
regarding the second research question. The second research question focuses on
the ways in which professional ethics codes attempt to regulate lawyers behaviour,
in general, and, in particular, the potentially deceptive behaviour of lawyers in
negotiation. An evaluation of the professional ethics codes is important since these
ethics codes are meant to provide guidance on how lawyers ought to behave in the
various areas of legal practice. The following sections provide an international and
Australian perspective on the ways in which the professional ethics codes attempt to
regulate deceptive behaviour. The chapter concludes with a cross-jurisdictional,
comparative analysis of the various legal ethics codes and a summary of insights
gained from this analysis. The insights demonstrate the need for a strategic set of
policy reforms, as outlined in Chapter 7, to better align the intent of the professional
ethics codes and the successful management of the potentially deceptive behaviour
of lawyers in negotiation.
662
Niccolo Machiavelli, The Prince (1515) 52. Machiavelli is quoted as being well-known for
advocating deceptive tactics and a win-lose mentality. In many respects his advice is
contrary to what the legal ethics codes advocate for attorneys yet, even today, these tactics
are used in many areas, especially business, and advocated by some legal scholars. See,
eg, White, above n 60; Carr, above n 532; Strudler, above n 67.

10
4.1 I1TRODUCTIO1
The quote by Machiavelli seems to sum up the tension inherent between how
lawyers tend to practice and the seemingly more stringent ethics rules under
which lawyers are expected to practice. This is particularly evident in the case of
negotiations where the intersection between business and the profession of law
collide with what is ethically appropriate and permissible. For lawyers, what is
ethically permissible is generally based on guidelines provided in the legal ethics
code. The purpose of this chapter is to discuss the findings of the second
research question, namely the manner in which legal ethics codes attempt to
control the potentially deceptive negotiation tactics used by legal professionals.
Once again, as stated in Chapter 1, section 1.6, this study acknowledges that
there may be other jurisdiction-specific statutory controls on negotiation
behaviour. These are considered out of scope for the purposes of this thesis and
this study. The focus of this study and this chapter is on the legal ethics codes to
which every practicing lawyer is subject as a member of the legal profession.
Legal ethics and the codes of professional conduct provide the rules and
663
guidelines by which lawyers are expected to conduct their daily practice. Each
common law legal jurisdiction generally has its own code of professional conduct. In
addition, there may be national codes of professional conduct which are adopted at the
state level, and sometimes adapted, by each major jurisdiction. For example, in the
United States, the American Bar Associations Model Rules of Professional Conduct is
approved by a national body and adopted by nearly all individual states except for
663
See, eg, Wolski, above n 124, 22-26.

664
California which has elected to use a state-specific professional code of conduct.
Similarly, in Australia, the Australian legal profession is currently regulated at the
665
state and territory level. These professional codes of conduct are meant to not
only provide rules of engagement with clients, dealings with other lawyers, and
rules of legal practice, but also how a legal professional is to behave in key
aspects of their profession, such as when acting as a prosecutor, mediator,
arbitrator, or judge. A violation of an ethics code or rule generally results in
disciplinary action by the professional association of that jurisdiction. Appeals
666
may be heard by the Court of Appeal of the relevant jurisdiction.
One of the most consistent rules of professional conduct appears to be
that a lawyer shall not lie or engage in deceptive or misleading conduct.
However, the extent to which this particular directive is stressed seems to vary
with each legal jurisdiction and with each unique function of a lawyer as
demonstrated by the actual provisions within the codes of professional conduct.
In an attempt to determine whether the legal ethics codes address the issue of
deception in negotiation, it is important to conduct an assessment of these ethics
codes. A cross-jurisdictional evaluation is necessary as a means to compare how
various legal jurisdictions handle a commonly-known problem. In addition, a cross-
jurisdictional perspective aids in determining commonalities and inconsistencies
664
American Bar Association Center for Professional Responsibility, ABA Model Rules of Professional
Conduct: State Adoption of Model Rules (2009) <http://www.abanet.org/cpr/mrpc/model_rules.html> at 9
August 2010.
665
Mary Ann Noone and Judith Dickson, Teaching Towards a New Professionalism: Challenging Law
Students to Become Ethical Lawyers (2001) 4(2) Legal Ethics 127, 128-129. Cf Council of Australian
Governments (COAG), :ational Legal Profession Reform (2009)
<http://www.ag.gov.au/legalprofession> at 9 August 2010 (providing a history and task force papers
related to reforms aimed at having uniform regulation of the legal profession in Australia).
666
Note: Here it is important to note that there is a difference between law and ethics as noted by
several scholars. This is also further discussed in Chapter 2 (Review of Literature).

across legal ethics codes that form part of the same legal system, namely the common-
law system as is the focus of this thesis. This comparative analysis provides greater
insight and decision-making clout to professional associations and governmental bodies
when considering the policy reform proposals discussed in Chapter 7, regardless of
whether a given jurisdiction faces the issues discussed in this thesis.
The next sections of this chapter describe and evaluate a representative
sample of legal ethics codes in select common law jurisdictions. The following
countries were part of this representative sample due to potential geographic, legal
and cultural differences, however slight: 1) Australia; 2) Canada; 3) United States; and
4) Hong Kong. Each section lists the key provisions of the jurisdictions legal ethics
code that deals with a prohibition or conditional prohibition of deceptive conduct by
lawyers. Particular attention is given to those provisions which specifically address the
negotiation process and guidelines for negotiation behaviour, especially the use of
deception in negotiation. Each section is also followed by a discussion of key insights.
The comparative analysis begins with an international perspective and continues with
a primary focus on select Australian jurisdictions.
4.2 I1TER1ATIO1AL PERSPECTIVES: U1ITED STATES, CA1ADA, HO1G KO1G
This section presents a comparative analysis of the legal ethics codes of three
international, common-law jurisdictions, namely the United States, Canada,
and Hong Kong.
The subject of the first analysis is the United States and the American Bar
Associations Model Rules of Professional Conduct. The American Bar Associations
Model Rules of Professional Conduct (MRPC or ABA Model Rules) are considered
the professional ethics rules of the U.S. legal profession. The ABA Model Rules

indicate the standard of conduct expected of all lawyers nationally. The MRPC has
667
been adopted in whole or in part by all states of the United States, except California.
Until December 2008, New York retained the Model Code of Professional
668
Responsibility (MCPR) while both California and Maine drafted and adopted their
669
own set of rules of legal ethics and professional responsibility.
However, New York adopted the MRPC as of 16 December 2008 while
670
Maine elected to adopt the MRPC as of 26 February 2009, leaving
California as the only state in the United States to retain its own state-
671
specific set of professional responsibility rules.
The following table represents some of the key provisions of the ABA
Model Rules as they pertain to regulating deceptive conduct. Certain
provisions of the ABA Model Rules, such as Model Rule 4.1, are especially
relevant as they outline acceptable negotiation behaviour and are the subject
of much scholarly debate. A brief analysis follows Table 4.1
Table 4.1: United States: Sample American Bar Association Model

Rules of Professional Conduct (MRPC or ABA Model Rules)
672
Regarding Deceptive and Misleading Conduct
Model Rule
Model Rule 1.5a
(Fees)
667
See generally ABA Model Rules of Professional Conduct: State Adoption of Model Rules, above n 6665.
668
American Bar Association Center for Professional Responsibility, ABA Model Rules of Professional
Conduct: Dates of Adoption (2009) <http://www.abanet.org/cpr/mrpc/chron_states.html> at 9 August 2010.
669
See generally ABA Model Rules of Professional Conduct: State Adoption of Model Rules, above n
665. New York initially adopted the Model Code of Professional Responsibility and has recently
accepted the Model Rules of Professional Conduct, Californias Supreme Court has adopted the
California Rules of Professional Conduct, and Maine has adopted its own Code of
Professional Responsibility
670
ABA Model Rules of Professional Conduct: Dates of Adoption, above n 669.
671
ABA Model Rules of Professional Conduct: State Adoption of Model Rules, above n 665.
672
See generally American Bar Association Center for Professional Responsibility, Model Rules of
Professional Conduct, above n 293.

Model Rule
Model Rule 1.6
(Confidentiality
of Information)
Model Rule 1.16

(Declining or
Termination
Representation)
Model Rule 2.1

(Advisor)
Model Rule 3.1

(Meritorious
Claims And
Contentions)
Model Rule 3.3

(Candor Toward
The Tribunal)
Model Rule 3.4

(Fairness To
Opposing Party
And Counsel)

Model Rule
Model Rule 3.8

(Special
Responsibilities
Of A Prosecutor)
Model Rule 4.1

(Truthfulness In
Statements To
Others)

Model Rule
Model Rule 7.1

(Communications
Concerning A
Lawyer's
Services)
Model Rule 8.1

(Bar Admission
And Disciplinary
Matters)
Model Rule 8.2

(Judicial And
Legal Officials)
Model Rule 8.4

(Misconduct)
Table 4.1 presented several key provisions of the ABA MRPC that pertain to
regulating deceptive and misleading lawyer conduct, with a focus on any provisions
673
Note: Model Rule 4.1 is the one most often cited and debated as permitting deception in
negotiations because of the Comment as italicised above. Attempts to amend this provision
have gone unheeded for the last ten-to-twenty years.

which specifically discuss negotiation behaviour. Several points are worth
noting about the ABA Model Rules.
First, each of these rules specifies an affirmative duty for the lawyer. The
674
affirmative duty may be to the client, the tribunal, to the opposing party and
counsel, or to a third person. The affirmative duty is denoted by the use of shall in
each of the directive statements above. Similar phrases which designate a duty to
perform an obligation include must or is required to. In each of the model rules
pertaining to potentially deceptive conduct, the words on the face of the statute
indicate a duty to not engage in such conduct. Interestingly, the duty is owed to a
specific stakeholder as evidenced by a literal reading of the rules.
Second, despite the fact that each of the rules appears to designate a
specific stakeholder to whom the duty is owed, Rule 8.4 appears all-encompassing
and broad with regards to professional misconduct since it appears that any
675
conduct involving dishonesty, fraud, deceit or misrepresentation is subject to a
potential finding of professional misconduct, regardless of whether the rule on its
face applies to a particular stakeholder.
Third, the ABA Model Rules specifically states that certain behaviour in
negotiations is exempt from being considered material for the purposes of being
treated as an ethical violation of the ABA Model Rules. According to ABA Model Rule
4.1, estimates of price or value, acceptable settlement offers, and the existence of an
undisclosed principal in the context of negotiations are not subject to the same
674
Model Rules of Professional Conduct (MRPC), Rule 1.0 (m) (defining tribunal as a court, an arbitrator in a
binding arbitration proceeding or a legislative body, administrative agency or other body acting in an
adjudicative capacity.).
675
See generally Model Rules of Professional Conduct (MRPC), Rule 8.4.

676
rules. Furthermore, these three exceptions are not all inclusive but simply
some of the exceptions which are ordinarily in this category of generally
677
accepted conventions in negotiations, which are not actionable. There
appears to be wide latitude and acknowledgment of certain potentially deceptive
yet acceptable behaviours in negotiation that lawyers might have to engage in
during the course of practice. This provision demonstrates the integration of duty
ethics with community ethics combined with some pragmatism as evidenced by
the comments to Rule 4.1, which advise lawyers to be mindful of their obligations
678
under applicable law to avoid criminal and tortious misrepresentation. This
cautionary provision appears to be aimed at requiring lawyers to ensure that they
mitigate any negative impact on the reputation of the legal profession.
In the context of this thesis, the selected provisions of the ABA Model
Rules appears to allow for a certain level of permissible deception in
negotiation that does not cross the boundaries of tortious or criminal sanctions.
Next, the focus is on Canada. The Canadian Bar Associations Code of
Professional Conduct (the CBA Code) provides the professional ethics guidelines for
lawyers in Canada. Under the CBA Code, a lawyer is defined as an individual who is
679
duly authorized to practise law and includes not only to those engaged in private
practice but also to those who are employed by governments, agencies, corporations
680
and other organizations. In Canada, much like the United States, the professions of
barrister and solicitor are fused and referred to as lawyers or legal
676
See generally Model Rules of Professional Conduct (MRPC), Rule 4.1 (comment).
677
See generally Model Rules of Professional Conduct (MRPC), Rule 4.1.
678
See generally, Model Rules of Professional Conduct (MRPC), Rule 4.1, comment [2].
679
See generally, Canadian Bar Association Code of Professional Conduct (2006) xiv
<http://www.cba.org/CBA/activities/code/> at 9 August 2010.
680
Canadian Bar Association Code of Professional Conduct (2006), above n 679, xiv. The CBA Code defines
legal professional as lawyers collectively.

professionals. The CBA Code applies to all Canadian territories, the exception of the
province of Quebec, which operates under the civil law tradition and maintains the
681
distinction of lawyers and defines them as either attorneys or civil-law notaries.
In Quebec, attorneys are much like those in the United States and operate
both as a trial lawyer and a case lawyer. As such, the discussions regarding
Canada are focused primarily on those provinces, excepting Quebec, which
still practice under the common-law system.
The following table, Table 4.2, lists some of the key provisions of the
CBA Code as they pertain to regulating deceptive conduct. A brief
discussion follows the list of provisions.
Table 4.2: Canada: Sample Rules of the Canadian Bar Association Code of
682
Professional Conduct (2006) Regarding Deception and Misleading Conduct
Rule
Chapter 3
(Advising
Clients)
Chapter 3, Rule
7 (Dishonesty or
Fraud by Client)
Chapter 9, Rule
1 (Guiding
Principle)
681
See generally Pawel Laidler, The Distinctive Character of the Quebec Legal System (2004) in M
Paluszkiewicz-Misiaczek, A Reczynska, A Spiewak (eds), Place and Memory in Canada: Global
Perspectives (2005).
682
See generally Canadian Bar Association Code of Professional Conduct, above n 679. The CBA Code
distinguishes between the lawyers function as advocate, prosecutor, mediator, and arbitrator. The Code
also specifically has Principles of Civility for Advocates (Appendix) and a provision for Courtesy, a
violation of which may cause the legal practitioner to be subject to disciplinary action (Chapter 9, Rule 16).

Rule
Chapter 9, Rule
2 (Prohibited
Conduct)
Chapter 14, Rule

3 (Advertising,
Solicitation)
Chapter 14, Rule

7 (Advertising,
Solicitation)
Table 4.2 identified some key provisions of the CBA Code. A review of these
ethics rules using the literal approach shows that, like the United States and
Australia, the Code of Professional Conduct in Canada imposes certain affirmative
duties on the part of the lawyer towards various stakeholders in the legal system.

First, consistent with the Australian Bar Association Model Rules (Barristers
Rules) yet unlike the American Bar Association Model Rules of Professional Conduct, the
Canadian Bar Associations Code of Professional Conduct makes no exceptions for any
683
deceptive or misleading conduct in the context of negotiations. In addition, the CBA
Code does not distinguish between material facts and non-material facts. On its face, it
appears that all or any facts may fall within the scope of conduct deemed unethical if
such conduct is deceptive, even where such conduct occurred within the context of a
negotiation. Taking this into account, it appears that the CBA Code is more closely tied to
duty ethics (via professional standards) than to end-result, community, or pragmatism
ethics. By this I mean that the CBA Code favours a greater adherence to the professional
codes of conduct that promote the lawyers zealous representation of the client, duty of
candour and respect for the courts, duty to preserve the quality of legal services and to
684 685
protect the interests of the public and the legal profession. As such, it might be fair
686
to say that community standards, such as the generally acceptable conventions in
negotiation that allow for some deceptive conduct, are not explicitly condoned, at least on
the face of the CBA Code.
683
See, eg, Canadian Bar Association Code of Professional Conduct (2006), above n 679, 27-28, Chapter V,
Rule 8 relating to conflicting interests in a contentious issue (stating in part that if the issue is one that
involves little or no legal advice, for example, a business rather than a legal question in a proposed business
transaction, and the clients are sophisticated, they may be permitted to settle the issue by direct negotiation in
which the lawyer does not participate.). This is the only reference to negotiation in the entire CBA Code and
seems to preclude the lawyer participating in such a session so as to preserve the lawyers impartiality and
retain the respect of the public.
684
Canadian Bar Association Code of Professional Conduct (2006), above n 679, Preface (stating that [i]n
order to satisfy this need for legal services adequately, lawyers and the quality of service they provide must
command the confidence and respect of the public.)
685
Canadian Bar Association Code of Professional Conduct (2006), above n 679, xiv (defining legal
profession as lawyers collectively.)
686
See Chapter 2, Section 2.3.5 (Theories of Ethics) for more information on the various ethics models. In the
context of this thesis, community standards refers to those standards of conduct established within a
community or group outside of a professional body, such as lawyers or doctors, which imposes its own special
set of ethics rules.

Within Canada, each province has its own legal professional body that
regulates the lawyers within that particular jurisdiction. Unlike the CBA Code
discussed above, the Law Society of Alberta, Canada is noteworthy because of
its approach to regulating the negotiation behaviors of lawyers. The Law Society
687
of Albertas Code of Professional Conduct (the Alberta Code) contains specific
ethics rules for the lawyer as negotiator. The provisions that deal with regulating
deceptive conduct in negotiations are highlighted in the table below along with an
assessment of the affirmative duty which the lawyer owes to various
stakeholders to refrain from such deceptive or misleading conduct.
Table 4.3: Alberta, Canada: Sample Rules of The Law Society of Alberta
688
Code of Professional Conduct (2006) Regarding Deception and
Misleading Conduct and Affirmative Duty to Stakeholders
Rule
Chapter 11,
Rule 1 (The
Lawyer as
Negotiator)
Chapter 11,
Rule 2 (The
Lawyer as
Negotiator)
687
See generally The Law Society of Alberta Code of Professional Conduct (2006)
<http://www.lawsocietyalberta.com/resources/codeProfConduct.cfm> at 9 August 2010.
688
See generally The Law Society of Alberta Code of Professional Conduct (2006), above n 687. The Alberta
Code specifically distinguishes between the lawyers function as advisor, advocate, mediator, arbitrator, and
negotiator. The Code has a specific chapter on the lawyer as negotiator, unlike the majority of other codes of
professional conduct. Only the rules related to the lawyer as negotiator are highlighted here for comparison
purposes. These rules appear to expressly prohibit forms of bluffing that might be considered acceptable in
other jurisdictions.

Rule
Chapter 11,
Rule 4 ((The
Lawyer as
Negotiator)
Table 4.3 highlighted several provisions of the Alberta Code related to the
lawyers function as negotiator. Several features of the Alberta Code deserve further
discussion. First, in addition to identifying negotiation as a key distinct function of the
lawyer, the Alberta Code specifically prohibits any deceptive or misleading conduct
by a lawyer or his/her client towards the opposing party and the clients third-party
689
allies, whoever they may be. The Alberta Code does not appear to condone, at
least on its face, any form of acceptable deception as argued by negotiation scholars
or as tacitly accepted under the ABA Model Rules.
Second, the Alberta Code imposes a continuing affirmative duty on the
lawyer to correct any deceptive or misleading conduct, including material
misrepresentations which may have subsequently become inaccurate over
the course of time in the negotiations. The Alberta Code does, however,
retain the reference to material facts with regards to this affirmative
obligation to correct deceptive or misleading information.
689
Interestingly enough, the duty to be honest seems to be directed to the opposing party
and client. There does not appear to be the same level of duty of honesty between the
lawyer and his/her own client.

Finally, by specifically addressing negotiation as a function of a lawyers
job, as distinct from the lawyers role as advisor, advocate, mediator, and
arbitrator, the Alberta jurisdiction appears to acknowledge that while conventional
negotiation practice may condone some deception in negotiation, the Alberta
jurisdiction formally recognises this aspect of a lawyers practice. In addition, by
recognising the function of lawyer as negotiator, the Alberta jurisdiction appears
to reject the view of adopting conventional negotiation practice in favour of
imposing an affirmative obligation on lawyers in this jurisdiction to refrain from
deceptive conduct in negotiation and encourages candour. In the Alberta
jurisdiction, professional duty ethics appears to trumps a community ethics or
bargaining ethics model that might condone deception in negotiation.
A final jurisdiction which was the focus of this comparative analysis of
legal ethics codes is Hong Kong. In Hong Kong, the Code of Conduct of the
690
Bar of the Hong Kong Special Administrative Region (2008) (the HK Code)
691
and the Hong Kong Solicitors Guide to Professional Conduct (2008) (the
HK Guide) govern the conduct of legal professionals. The HK Code applies
only to barristers while the HK Guide applies to solicitors. The provisions that
deal specifically with regulating the potentially deceptive conduct of legal
professionals are highlighted in the table below, followed by a brief analysis.
690
See generally Code of Conduct of the Bar of the Hong Kong Special Administrative Region (2008)
<http://www.hkba.org/the-bar/code-of-conduct/code-of-conduct.html> at 9 August 2010 (HK Code).
691
The Law Society of Hong Kong, Hong Kong Solicitors Guide to Professional Conduct (2008)
<http://www.hklawsoc.org.hk/pub_c/professionalguide/volume1/> at 9 August 2010 (HK Guide)

Table 4.4: Hong Kong: Sample Rules of the Code of Conduct of the
692
Bar of the Hong Kong Special Administrative Region (2008) and
693
The Hong Kong Solicitors Guide to Professional Conduct (2008)
Regarding Deception and Misleading Conduct
Rule
The HK Code,
Rule 6
The HK Code,
Rule 11
The HK Code,
Rule 137
The HK Guide,
Rule 10.03 (Duty
to Court)
The HK Guide,
Rule 11.03 (Duty
to Report
Misconduct)
692
See generally Code of Conduct of the Bar of the Hong Kong Special Administrative Region (2008), above
n 690. Note: The HK Code applies strictly to barristers and is based on the Code of Conduct for the Bar of
England and Wales (1981) addition with variations warranted by local conditions and practice.
693
Hong Kong Solicitors Guide to Professional Conduct (2008), above n 691. The Guide
applies to solicitors.

Rule
The HK Guide,
Intervention
Table 4.4 presented the key provisions of the HK Code and the HK Guide
dealing with deceptive or misleading conduct. Several features of the HK Code and HK
Guide are worth nothing in comparison to the legal ethics codes discussed above.
First, consistent with the other jurisdictions discussed above, Hong
Kong also imposes certain affirmative duties on solicitors and barristers to
refrain from engaging in potentially deceptive conduct.
Second, neither the HK Code nor the HK Guide makes explicit exception for
deceptive or dishonest conduct in negotiations. The provisions in both codes of
conduct in Hong Kong appear broad in application to solicitors and barristers.
Third, based on a literal reading of these rules, the most salient feature is strict
694
compliance with the duties of the profession including its ethics and etiquette. Duty
ethics appears strong in the Hong Kong legal profession, even trumping community
standards as evidenced by the HK Codes Rule 6(b) which regulates personal conduct
and prohibits lawyers from engaging in personal conduct (conduct not in the course of
carrying out ones profession as a barrister) that might be considered dishonest or impact
the reputation of the profession or the administration of justice.
Finally, the duty to the profession and the court or tribunal seems
higher than the duty to the client even where the barrister or solicitor may
need informed consent to disclose certain information.
694
Code of Conduct of the Bar of the Hong Kong Special Administrative Region (2008),
above n 690, Rule 6.

In summary, the foregoing section presented a comparative analysis
of the legal ethics codes of a select group of common law jurisdictions in the
United States, Canada, and Hong Kong. The next section focuses on the
legal ethics codes of Australia.
4.3 AUSTRALIA1 PERSPECTIVES: QUEE1SLA1D
This section focuses on Australia, in general, and on Queensland, Australia in
particular. Historically, the legal system in Australia was a self-regulated
profession; however today, it is part of a co-regulatory system consisting of courts
and independent statutory authorities, such as the use of the Legal Services
695
Commission for handling lawyer disciplinary matters. In addition, Australias
696
legal profession is a double-barrelled profession, depending on the state or
territory. In some states and territories, such as New South Wales and Victoria,
697
the legal profession is separated into solicitors and barristers. In other states
and territories, such as Queensland, South Australia, and Australian Capital
Territory, the legal profession is fused and legal practitioners are considered
legal professionals (lawyers) though they may still practice as barristers and
698
solicitors. In those states and territories where solicitors and barristers have
separate duties, the professional association for barristers is called the bar
699
association while, for solicitors, the professional association is the law society.
695
New South Wales Justice and Attorney General, Lawyer Regulation in Australia: Background (2009)
<http://www.lawlink.nsw.gov.au/lawlink/olsc/ll_olsc.nsf/pages/lra_index> at 9 August 2010.
696
Lawyer Regulation in Australia: Background, above n 695.
697
Lawyer Regulation in Australia: Background, above n 695 (barristers specialise in court work while
solicitors specialises in general legal services)
698
Lawyer Regulation in Australia: Background, above n 695 (proving a historical background to lawyer
regulation in Australia and definition of key terms).
699
Lawyer Regulation in Australia: Background, above n 695.

The Australian Bar Association provides model rules of conduct
specifically for barristers. Until approximately 2004, the barrister discipline under
Australian Bar Association was largely voluntary and barristers in Australia were
700
not as heavily regulated as solicitors. The Australian Bar Association Model
Rules (Barristers Rules) (the AusBar Model Rules) provides the professional
701
code of ethics for barristers. Table 4.5 represents some of the key rules as
they pertain to regulating the potentially deceptive conduct of barristers. This is
followed by a brief discussion and analysis of the AusBar Model Rules
Table 4.5: Australia: Australian Bar Association Model Rules (Barristers

702
Rules) Regarding Deceptive and Misleading Conduct
Rule
Preamble
Rule 21
Rule 22
Rule 29
700
See, eg, Levin, above n 587, 187-210; Haller, above n 587, 1; Linda Haller and Heather Green, Solicitors
Swan Song?: A Statistical Update on Lawyer Discipline in Queensland (2007) 19.1 Bond Law Review 140.
Each source provides a historical perspective on Australias lawyer disciplinary system with a special focus
on Queensland.
701
The Australian Bar Association, Creation of the ABA (2006) <http://www.austbar.asn.au/index.php?
option=com_content&task=view&id=21&Itemid=28> at 9 August 2010 (discussing the history of the
Australian Bar Association and its creation and purpose).
702
See generally The Australian Bar Association, The Australian Bar Association Model Rules (2002)
<http://www.austbar.asn.au/images/stories/PDFs/CurrentABAModelRules2002.pdf> at 9 August 2010. These
model rules appear to pertain specifically to barristers and there is a special rule for barristers appearing as
mediators, but not as negotiators. Negotiation is listed as a skill and task of the barrister.

Rule
Rule 33
Rule 51
Rule 52
Rule 53
Table 4.5 listed key provisions of the AusBar Model Rules pertaining
to deceptive or misleading conduct. Four key points are worth noting about
the AusBar Model Rules.
First, under the AusBar Model Rules, barristers are considered specialist
703
advocates in the administration of justice and are required, among other things,
to act honestly. Similar to the US ABA Model Rules, the AusBar Model Rules direct
703
The Australian Bar Association Model Rules (2002), above n 702, Preamble.

barristers to refrain from engaging in any deceptive or misleading conduct and impose an
affirmative duty to various stakeholders including the court and opponents.
Second, the AusBar Model Rules appear to place a greater emphasis on
the duty to the court and the opponent in relation to the duty to the client. As
such, the AusBar Model Rules seem to be more closely aligned to a loyalty to
duty ethics than to community ethics or pragmatism as discussed in Chapter 2.
Third, the AusBar Model Rules, unlike some of the provisions discussed above,
does not make the distinction between material and non-material statements that
might be deceptive or misleading. Under the AusBar Model Rules, the barrister has an
affirmative duty to refrain from making any false or misleading statements and to
correct any false or misleading statements known to have been made.
Finally, the AusBar Model Rules make no exception to any deceptive
or misleading negotiation behaviour as being exempt from a violation of
these rules. However, as noted before, the AusBar Model Rules are not
mandatory and barristers, even today, may be able to bypass adherence to
704
these rules simply be giving up their membership.
Transitioning from Australia, in general, to one of the legal jurisdictions in
Australia, this section now focuses on the legal ethics codes of Queensland, Australia.
One of the focus areas of this thesis is Queensland, Australia in which the legal
705
profession is fused and barristers and solicitors are regulated under a common
704
Levin, above n 587, 187-210; Haller, above n 587, 1.
705
Legal Profession Act 2007 (Qld), Schedule 2 (Dictionary) (defining solicitor as a local legal practitioner
who holds a current local practicing certificate to practice as a solicitor or an interstate legal practitioner
who holds a current interstate practicing certificate that does not restrict the practitioner to engaging in legal
practice only as or in the manner of a barrister.).

706
legislation. In Queensland, the Legal Profession Act 2007 (Qld), the Legal
707
Profession Regulation 2007 (Qld), the Legal Profession (Solicitors) Rule2007
708 709
(Qld), and the Legal Profession (Barristers) Rule2007 (Qld) provide
the ethics rules which govern the legal professionals in this jurisdiction. The
rules which address the regulation of deceptive and misleading conduct for
barristers and solicitors are highlighted in Table 4.6 and Table 4.7,
respectively, based on each specific regulation.
Table 4.6: Queensland, Australia: Sample Rules via the Legal Profession
Act 2007 (Qld) Regarding Deception and Misleading Conduct
Rule
s 328 (Setting
aside costs
agreements)
Chapter 4, s 416
(Complaints and
Discipline)
s 420 (Conduct
capable of
constituting
unsatisfactory
professional
conduct or
professional
misconduct)
706
Legal Profession Act 2007 (Qld).
707
Legal Profession Regulation 2007 (Qld).
708
Legal Profession (Solicitors) Rule 2006 (Qld).
709
Legal Profession (Barristers) Rule 2007 (Qld).
710
Under the Legal Profession Act 2007 (Qld), dishonesty includes fraud.

Table 4.7: Queensland, Australia: Sample Rules via the Legal Profession
(Solicitors) Rule 2007 (Qld) Regarding Deception and Misleading Conduct
Rule
(Statement of
general principle)
Rule 1 (Duty to
client)
Rule 14
(Frankness in
court)
Rule 18
(Communications
with opponent)
Rule 28
(Communications)
Rule 30 (Standard
of conduct)

Rule
Rule 36
(Advertising)
Table 4.6 listed key provisions of the Legal Profession Act 2007 (Qld)
while Table 4.7 listed provisions of the Legal Profession (Solicitors) Rule 2007
(Qld) which address deceptive or misleading conduct. The Legal Profession
(Barristers) Rule 2007 (Qld) is similar to the AusBar Model Rules and is not
repeated here. Several points are worth noting about the provisions of the
Queensland jurisdictions professional codes of conduct identified below.
First, while the Statement of general principles under the Legal Profession
Act 2007 (Qld) indicates that solicitors have a discretionary power (as indicated by
should statements) to be honest and frank in their responses and disclosures to the
711
court, the rules themselves explicitly contain affirmative obligations to refrain from
engaging in deceptive or misleading conduct (as indicated by must statements).
Second, solicitors are obligated to ensure that they do not bring the courts,
other solicitors, or the profession into disrepute. In this aspect, the Queensland
rules seem aligned with the duty ethics as well as pragmatism ethics models since
both professional duty and concerns for reputation underlie the ethics rules.
Third, unlike Rule 4.1 of the ABA Model Rules, the Queensland legal
profession rules do not make an explicit exception for any deceptive or misleading
711
Legal Profession (Solicitors) Rule 2007 (Qld), Statement of General Principle.

conduct that might occur in the context of a negotiation. Through a literal
interpretation of these provisions, deceptive and misleading conduct
appears to be strictly prohibited, even in negotiations.
Finally, whereas the ABA Model Rules make references to deceptive conduct in
regards to material statements of act or law, the Queensland rules do not appear to
712
make this distinction. The use of the term statements without a qualifier in some of
the provisions seems to indicate that any statement made, material or otherwise, that is
knowingly false or any statement that is not corrected within a reasonable time if
unknowingly false may fall within the ambit of a possible ethics violation.
In summary, the Queensland ethics codes discussed above, at least on their
face, appear more stringent than community standards with regards to deception in
negotiation and aligned closely to an integration of duty ethics and pragmatism
713
ethics to promote and ensure the high standards of the profession. In the context
of this thesis, the comparative analysis provides insight into determining whether the
legal ethics codes are sufficient to deter deceptive or misleading conduct in
negotiations and in developing the policy reform proposals outlined in Chapter 7.
4.4 CROSS-JURISDICTIO1AL SUMMARY A1ALYSIS
A synthesis of the cross-jurisdictional analysis of the legal ethics codes shows
the following with regards to whether the jurisdiction addresses the negotiation
process, deceptive conduct in negotiations, and whether the professional ethics code
712
See, eg, Legal Profession (Solicitors) Rule 2007 (Qld), Rule 14 (Frankness in court) and Rule 18
(Communications with opponents)
713
Cf Levin, above n 587 (citing to and discussing that even with these seemingly high standards,
there is something seriously wrong with lawyer discipline systems.).

of conduct can be correlated to any of the five predominant ethics models discussed in
714
detail in Chapter 2.
Table 4.8: Cross-Jurisdictional Summary Analysis of Deception in

1egotiation in Legal Ethics Codes
Jurisdiction
US ABA Code
Australia AusBar
Model Code
Queensland,
Australia
Canada CBA
Code
Alberta, Canada
Hong Kong
Professional ethics codes in the legal profession are the primary means to
control the behaviour of lawyers in a variety of circumstances, including the use of
potentially deceptive or misleading conduct by lawyers in negotiations. Nearly all
professional codes of conduct contain provisions which prohibit deceptive conduct in
a variety of circumstances including while in court or tribunal hearing, when dealing
with another lawyer, when advertising for services, and if appointed to judicial office.
Some codes of conduct are highly explicit regarding the circumstances in which
deceptive conduct is prohibited whereas others use a guiding principle that is meant
to apply to all aspects of legal practice, in all forums, and with all persons whether
they are the general public, clients, opposing counsel, or the court.
714
See Chapter 2 (Review of Literature) for a more detailed discussion of theories of ethics,
legal ethics, and bargaining ethics models.

For the purposes of this comparative analysis of legal ethics codes, the
following common-law jurisdictions provided a relatively diverse sample from which
to compare and contrast the legal ethics codes for the purpose of addressing the
second research question: 1) Australia; 2) Canada; 3) Hong Kong; and 4) United
States. I expected to see some differences between Australia and the United States,
no differences between United States and Canada, and marginal differences
between Australia and Hong Kong due to geographic proximity or lack thereof.
Three primary insights stand out after evaluating the legal ethics codes in
these select common-law jurisdictions. First, law and ethics appear to collide within
the professional ethics codes. They come from different perspectives and are not
necessarily congruent or integrated in their assessment of which deceptive conduct
is permissible or not. For example, lawyers are legally required to protect client
confidences even where such confidences may lead the lawyer to ethically conclude
that the client has engaged in wrong-doing. This may be consistent with the view of
some scholars who argue that law is less strict than ethics and the legal ethics codes
715
are rules of law, not ethics. What this seems to mean is that even though the legal
ethics codes place a broad prohibition on deception, lies and misleading conduct,
these codes of conduct do not necessarily have as great a force for influencing
behaviour as true societal ethics (general or community ethics) or even higher
standards of personal ethics. In addition, the legal ethics codes do not appear to
provide detailed clarity on specific conduct that is considered deceptive or misleading
in the course of practice while still fulfilling professional obligations under the legal
ethics codes. This may lead to the conclusion that that lawyers, in the course of their
715

duties, may use deception far more often than their personal ethics, or
716
any ethics, might allow.
The legal ethics codes stem from legal positivism and are essentially
disciplinary codes. Thus, these rules are drafted and enforced by society and said to
717
be made by reason for the greater good. This is different from rules of natural law
718
discussed in Chapter 2. As discussed initially in Chapter 2, the legal ethics codes
719
discussed in this thesis are primarily disciplinary codes. In contrast, societys
ethical standards and, in some cases, personal ethics seem to be tied to principles of
720
natural law - unchangeable, applying universally, and superior to man-made laws.
As such, these ethics codes are presumably aspirational codes and meant to
convey a higher standard of conduct consistent with societys or an
721
individuals expectations of truth and justice, standards which can conflict
with the legal professions duties as espoused in the legal ethics codes.
Second, the legal ethics codes studied in this thesis lack gradations between
722
different kinds or degrees of wrong-doing and associated sanctions. The effect of
this, as seen by analysing the ethics violation cases in Chapter 5, is a seemingly
subjective standard of assessment against a legal practitioner alleged to have engaged
in deceptive conduct. Without explicit guidance on what is considered a violation of
716
See Chapter 2 (Review of Literature) for a more detailed discussion of theories of ethics, legal ethics, and
bargaining ethics models.
717
718
See Chapter 2, Section 2.3.1 (Theories of Law) for more information on this topic.
719
See Chapter 2, Section 2.3.3 (Theories of Legal Ethics) for more information on the difference
between disciplinary codes and aspirational codes of ethics.
720
See Carvan, above n 2, 4.
721
This could stem from religious or spiritual beliefs about the nature of truth and justice and order in
society.
722
See, eg, QLS Inc v Craig Stephen Bax [1998] QCA 089 (Pincus JA) (discussing the fact that there are
shades of dishonesty though not expanding on them. His view also did not affect the final outcome.). In the
Queensland, Australia jurisdiction, these gradations are not specified in the legal ethics codes used to
judge potential ethics violations.

the legal ethics code in terms of deceptive or misleading conduct in negotiations or
other areas of practice, the lawyer is subject to the hardest sanctions for a potentially
minor violation or degree of unethical conduct. Once again, it seems that a lack of
gradations or degrees of prohibited deception is out of alignment with what the law
allows and what society presumably condones in the case of negotiation behaviour.
One can imagine a scenario where a legal practitioner could be convicted of
some form of deceptive conduct under an ethics code whereas law and the community
standards might see this conduct as acceptable and not legally actionable. An example is
a scenario where the lawyers opening offer in a negotiation is untrue, unrealistic or
unsubstantiated yet this tactic of a high opening offer is expected under prevailing
negotiation principles. Under the explicit language of the legal ethics codes studied in
this chapter, all the common-law jurisdictions, except the United States under the ABA
Model Code, would presumably consider this deceptive or misleading conduct and
therefore actionable as an ethics violation rather than this same conduct being
considered mere puffing. This is more likely in such jurisdictions as Australia, where
there are no distinctions in the legal ethics codes with regards to negotiation
723
behaviour. In contrast, the American Bar Associations MRPC, Rule 4.1 specifically
states that some negotiation practices such as puffing are not material facts subject to
an actionable ethics violation. Condoning some forms of deception in a legal ethics code,
regardless of how it might accurately reflect
723
Note: This is not to discount the potential impact of section 52 of the Trade Practices Act in
Australia. It is, however, important to note many in the legal profession do not consider the Trade
Practices Act to be binding to the profession in the strictest sense. Cf Australian Competition and
Consumer Commission, Professions and the Trade Practices Act (2010) 19-20
<http://www.accc.gov.a u/content/item.p html?itemld=926503&nodeld =71b6c165a
bc78f1a60fOa1643c9367&fn=Professions%20and%20the%20TPA.pdf> at 9 August 2010
(specifically reinforcing the obligation of the professions to refrain from deceptive and misleading
conduct when dealing with clients). This latter document is an updated document highlighting and
reinforcing the application of the TPA on all professions in Australia, including the legal profession.

prevailing norms or prevailing law of that jurisdiction, has its problems.
These problems can be addressed through minor, yet effective policy
reforms as discussed further in Chapter 7.
Finally, the legal ethics codes take different approaches in how they view the
role of negotiation. The distinction I am making here is the difference between seeing
negotiation as a skill or a function (i.e. role). Negotiation is widely recognised as an
important and required skill for the legal professional much like the ability to draft
documents, conduct competent legal research, and make court appearances. At the
same time, the legal professional, in many circumstances, serves formally in the role
of negotiator on behalf of his/her client, a corporation, or a governmental body. This
role of negotiator is distinct from, for example, the lawyers role as a trial advocate
(i.e. barrister), mediator, arbitrator, or judge. Each one of these roles (i.e. functions)
requires the legal professional to adhere to certain defined codes of conduct, at least
within the legal system. As evidenced by many legal ethics codes, there are specific
ethics rules that apply to the lawyer as advocate, mediator or third-party neutral,
prosecutor, or judge. However, in most of the legal ethics codes evaluated in this
chapter, the function of lawyer as negotiator is presumed yet not clearly
724
distinguished from the lawyers other roles. In fact, with the increased use of
alternate dispute resolution processes, a lawyer acts as a negotiator far more often
725
than a litigator, advocate, or judge.
724
Note: One exception, for example, is the Law Society of Albertas Code of Professional Conduct
discussed in Chapter 4, Section 4.2.
725
This could be argued though in a less litigious society and on the international stage, it could be argued
that the primary function of the lawyer is to negotiate on behalf his/her clients interests, with litigation being
the final option. See, eg, Bordone, above n 96, 1 (discussing the need to formally recognise the distinction).

This issue of the distinction between a lawyer as negotiator and a lawyer who
uses negotiation skills may be a fine and subtle distinction as well as controversial.
On the one hand, explicitly recognising the role of a lawyer as negotiator means that
the negotiation process as conducted by lawyers can be subject to specific ethical
726
rules, such as those evidenced by the Alberta Code of Professional Conduct. On
the other hand, not recognising the role of lawyer as negotiator could mean that the
negotiation behaviour of lawyers, if deceptive, will continue under the radar without
scrutiny and that lawyers might rely on non-legal standards, such as prevailing
negotiation practices, during negotiations and thus potentially violate the legal ethics
codes. While the topic might be controversial, a discussion on this distinction may be
warranted and useful in light of the negative perceptions facing lawyers today
regarding their alleged deceptive conduct in negotiations, the potential impact of
such conduct on the integrity of the bar, and the negative public perception of
lawyers and the legal profession. Positive and frank dialogue about explicitly
recognising the lawyers role as negotiator along with constructive and objective
assessment of amending the legal ethics codes to reflect this formal recognition may
determine the extent to which legal ethics codes can successfully curtail the use of
deception in negotiations.
In the legal profession, the professional codes of conduct of each jurisdiction
are meant to provide guidance for how lawyers ought to behave as legal professionals.
This includes whether lawyers can engage in potentially deceptive or misleading conduct
in negotiations. This chapter analysed the extent to which the legal
726
See Chapter 4, Table 4.3 for more information.

professions ethics codes address the issue of the use of deception in
negotiation through a cross-jurisdictional analysis of the legal ethics codes
of a select group of common-law countries.
The findings demonstrate a consistent approach to prohibiting deceptive
or misleading conduct while showing a varied or non-existent approach to
dealing with the lawyer as negotiator and his or her behaviour in this capacity.
This chapter concluded with a discussion of some insights gained from this
qualitative and comparative study of legal ethics codes. These insights pave the
way for proposing a set of strategic policy reforms detailed in Chapter 7.
The next chapter, Chapter 5, focuses on a single common-law
jurisdictions handling of ethics violation cases alleging deceptive or misleading
behaviour with an eye towards determining whether such behaviour in
negotiations is or ever can be adequately and effectively regulated.

10
CHAPTER 5
THE SUCCESS OF PROFESSIO0AL ETHICS CODES
I0 CO0TROLLI0G LAWYERS DECEPTIVE BEHAVIOUR
Truth is something which can't be told in a few words. Those who

simplify the universe only reduce the expansion of its meaning.
727
~ Anais >in
Chapter 3 discussed the first research question while Chapter 4 focused on
the second research question. This chapter focuses on the third research question,
namely whether the professional ethics codes are successful in curtailing deceptive
behaviour of lawyers in general and deceptive behaviour in negotiation, in particular.
The chapter begins with an introduction to the Queensland legal jurisdiction and its
attempts to curtail unprofessional conduct, unsatisfactory professional conduct, and
professional misconduct in the form of misleading or deceptive behaviour. Next, the
chapter presents the results of a qualitative study of Queenslands ethics violation
cases with a focus on cases involving deception in negotiation. This chapter
concludes a brief summary of the results of this third research question and the
implications of the findings on the law reform proposals discussed in Chapter 7.
5.1 I0TRODUCTIO0 (I0CLUDI0G A DEFI0ITIO0 OF SUCCESS)
The third research question deals with whether the legal ethics codes can
successfully control the lawyers deceptive behaviour in negotiation. In order to
address this question, it is necessary to look at how a legal jurisdiction uses and
enforces the legal ethics codes when there is a violation of this provision of the code
727
Brainyquote.com, Anais >in Quotes (2009)
<http://www.brainyquote.com/quotes/quotes/a/anaisnin391098.html > at 9 August 2010.
Anais Nin was an American author.

of conduct. In this thesis, I conducted an original study of the ethics violation
cases in the common-law jurisdiction of Queensland, Australia. Queensland
was selected as a sample jurisdiction for two main reasons.
First, Queenslands lawyer regulation framework provides that all ethics
violation cases that are formally prosecuted be made available to the public
through a public register. This allowed for easy access to the necessary research
materials required to undertake the study. Second, Queenslands legal ethics
code provisions were sufficiently distinct from those of, for example, the United
States ABA Model Code regarding deceptive and misleading conduct in
negotiation, to serve as a point of useful comparison. These two factors
combined with the researchers geographic proximity to Queensland makes
Queensland an ideal common-law jurisdiction on which to construct an analytical
framework that can be leveraged in future studies on this topic.
As discussed in Chapter 4, Queenslands legal ethics codes prohibit all
forms of deceptive and misleading conduct regardless of forum or function. In
addition, Queenslands legal ethics codes are silent regarding negotiation
728
behaviour and make no exceptions for deceptive conduct in negotiations.
Prior to presenting the results of the empirical study of ethics violation
cases, this section begins with a working definition of success followed by a
historical perspective of lawyer discipline in Queensland and an introduction
about certain features of this jurisdiction. The purpose of these foundation
sections is to provide a context for discussing the findings of the study of
ethics violation cases in section 5.10.
728
See Chapter 4, Section 4.3 (Australian Perspectives Queensland) for more
information on select Queensland legal ethics code provisions relevant to this chapter.

One of the primary purposes of the legal ethics rules, as stated in section 3(a) of
the Legal Profession Act 2007 (Qld) is to regulate legal practice in Queensland so as to
729
protect[]consumers of the services of the legal profession and the public generally.
Protection of the public interest is such a priority that it calls for effective vigilance over
members of the profession and its standards of professional behaviour.to ensure as
well as possible that the public may confidently place their business and affairs in its
730
hands. Disciplinary proceedings are the means by which the legal profession
attempts to protect the public as well as the reputation of the profession. While
disciplinary proceedings are not meant to be a form of retribution, the Tribunal has
acknowledged that in order to protect the public and the reputation of the profession the
consequences for the practitioner may need to be more severe than they would be if the
731
only object of the proceedings was punishment.
Ideally, the punishment imposed would have a deterrent effect such that it would
732
simultaneously protect the public and deter future misconduct. Deterrence is
distinguished from retribution in several ways. First, punishment as deterrence would
prevent (deter) similar conduct in the future while punishment as retribution is simply
733
punishment for its own sake. Second, punishment intended to have a deterrent effect
is designed to have a future protective effect and is therefore forward-looking.
729
Legal Profession Act 2007 (Qld) s 3(a).
730
Mellifont v The Queensland Law Society Incorporated (1981) Qd. R. 17, 30 (Andrews J with the
concurrence of Connolly J) (Mellifont).
731
See e.g. re Maraj (1995) 15 WAR 12; Queensland Law Society Incorporated v Smith [2000] QCA 109;
CA No 1052 of 2000, 4 April 2000 (describing the Bar as not an ordinary profession or occupation but one
that requires that counsel must command the personal confidence, not only of lay professional clients, but
of other members of the Bar and of judges.).
732
Attorney-General v Bax [1999] 2 QdR 9 (Pincus JA noting that Although I accept that remedies for
suspension or striking off are not applied by way of punishment, but rather for the protection of the public,
there is also a deterrent element.) (Bax); Queensland Law Society v Carberry [2000] QCA 450, [38]
(Moynihan SJA and Atkinson J saying in part .As was pointed out in Attorney-General v Baxthere is a
subsidiary purpose in the public interest and that is to deter other practitioners who might otherwise engage in
professional misconduct.).
733
Haller, above n 587, 153-154.

In contrast, punishment intended as retribution does not necessarily have a
734
protective effect; it is merely thought fair that a person be punished for a
735
wrong conduct committed in the past and therefore has a backward focus.
In determining whether legal ethics codes are successful in regulating the
deceptive behaviours of legal professionals in negotiations, success as used in this
thesis and for the purposes of this chapter, is defined as containing the following
elements: 1) the legal ethics codes are successful in regulating deceptive behaviours of
legal professionals in negotiations to the extent that the legal profession formally
prosecutes lawyers who engage in deceptive conduct in negotiation; 2) the legal ethics
codes are successful in regulating deceptive behaviours of legal professionals in
negotiations to the extent that formal prosecutions of lawyers who engage in such
conduct deter others from engaging in similar conduct in the future; 3) the legal ethics
codes are successful in regulating deceptive behaviours of legal professionals in
negotiations to the extent that there are low recidivism rates for lawyers who engage in
such conduct in the future; and 4) the legal ethics codes are successful in regulating
deceptive behaviours of legal professionals in negotiations to the extent that formal
prosecutions of lawyers who engage in such conduct have enough of a deterrent effect
on the future conduct of others such that the public is protected and public perception of
736
lawyers as deceptive or manipulative is diminished or negligible.
Keeping this definition in mind, the next section explores the historical
perspective of lawyer discipline in the Queensland jurisdiction as well as the primary
legal ethics violation types in Queensland. This is followed by the results and
734
Haller, above n 587, 154.
735
Haller, above n 587, 153-154.
736
Note: This definition of success is formulated from the proceeding discussion on the deterrent and
punitive concepts in regulating behaviour.

analysis of an empirical study of Queensland ethics violation cases over an
eleven-year period.
5.2 HISTORICAL PERSPECTIVE OF LAWYER DISCIPLI0E I0 QUEE0SLA0D

th
Historically, and until the end of the 20 Century, the professional
associations of solicitors and barristers have undertaken most of the responsibility of
737
disciplining Australian lawyers. Through the Queensland Law Society Act 1927
738
(Qld), which created the Queensland Law Society (Law Society or QLS) as an
incorporated body, a Statutory Committee was created with the power to hear
739
complaints against solicitors and strike them off the roll where necessary.
Decisions of the Statutory Committee could be appealed to the courts that retained
ultimate jurisdiction over solicitor discipline. During the 1920s and 1930s, the
Queensland Law Society also monitored solicitors trust accounts and was granted
740
the power to regulate issuance of practicing certificates. While the Queensland
Law Society had the power to formally discipline solicitors, the Queensland Bar
Association, established in 1903 as a voluntary association of barristers, had no
741 742
power to discipline barristers. It was essentially considered a toothless tiger.
737
D Weisbot, Australian Lawyers (1990), 193, 199-201. See also Levin, above n 587, 187-210.
738
Queensland Law Society Act 1927 (Qld) as amended by Queensland Law Society Acts Amendment Act
1938 (Qld) and now called Queensland Law Society Act 1952 (Qld) (establishing Queensland Law
Society).
739
Ibid.
740
Trust Accounts Act 1923 (Qld)
741
Note: This is different from historical perspective of the Australian Bar Association discussed above in this
chapter.
742
Levin, above n 587, 189.

During the 1970s, doubts began to surface about the effectiveness of
743
lawyer self-regulation and the possible incorporation of a lay person or
body and external ombudsman into the disciplinary process.
In 1985, Queensland enacted legislation which established a Lay
744
Observer and created a Solicitors Disciplinary Tribunal (SDT). Based on
earlier recommendations, the Solicitors Disciplinary Tribunal was a panel
composed of two solicitors and one lay person. The SDT could hear matters
745
but could not strike off or suspend a solicitor.
In 1997, both the Statutory Committee established under the Queensland Law
Society Act 1927 (Qld) and the Solicitors Disciplinary Tribunal established under the
Queensland Law Society Act Amendment Act 1985 (Qld) were replaced by a
746
single Solicitors Complaints Tribunal (SCT). Along with the SCT, a Legal
Ombudsman was appointed with power to bring charges and to handle
747
appeals to decisions of the SCT.
By early 2003, issues still remained with lawyer regulation and the discipline
process in Queensland. In 2003, upon request of the Queensland Attorney-General and
Minister of Justice, the Legal Ombudsman conducted an investigation of the general
complaints handling process conducted by the Queensland Law Society and issued a
report stating that there was a conflict of interest in maintaining a regulatory
743
See, eg, NSW Reform Commission, Discussion Paper No 2, Legal Profession: Complaints,
Discipline and Professional Standards, Part 1 (1979) 7
<http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp2out> at 9 August 2010.
744
Queensland Law Society Acts Amendment Act 1938 (Qld).
745
Levin, above n 587, 189 (citing Haller, above n 587, 4).
746
Queensland Law Society Acts Amendment Act 1938 (Qld); Queensland Law Society Act 1952 (Qld), s 6AI
(1).
747
Ibid.

748
role as well as maintaining their [sic] role as a Society to benefit the profession.
The Legal Ombudsman recommended an independent body to
749
handle lawyer complaints.
In 2003, Queenslands Parliament passed the Legal Profession Act 2003
(Qld) (the 2003 Act) which established the independent lawyer discipline system
and agency. This was quickly followed by the enactment of the Legal Profession
Act 2004 (Qld) (the 2004 Act), which retained the independent lawyer discipline
system and added provisions including those on multidisciplinary partnerships,
the practice of foreign law, and details on what may constitute unsatisfactory
750
professional conduct or professional misconduct.
The reforms to the Queensland lawyer discipline system under the 2004 Act are
considered quite significant in comparison to other jurisdictions. Under the 2004 Act,
the Queensland lawyer discipline system incorporates three main structural changes: 1)
establishes the Legal Services Commissioner to receive, evaluate, refer complaints for
751
investigations, and prosecute the case; 2) establishes various procedures for how to
752
handle certain categories of complaints; and 3) establishes two separate tribunals to
753
hear disciplinary matters. In addition to the structural changes, the 2004 Act also
represents a significant shift from a self-regulated
748
Jack Nimmo, The Queensland Law Society and Baker Johnson Lawyers (Legal Ombudsman,
Brisbane, 2003), 2, 5, 7-9. See also Baker v Legal Services Commission [2006] QCA 145 (Baker).
749
Nimmo, above n 748, 2, 5, 7-9.
750
Legal Profession Act 2004 (Qld) (the 2004 Act). For the purposes of this thesis, I will refer to the Legal
Profession Act 2004 (Qld) where necessary as a historical reference point and to the most current reprint, the
Legal Profession Act 2007 (Qld), in general as it contains all the relevant provisions of the 2004 Act.
751
Legal Profession Act 2004 (Qld) s 414; Legal Profession Act 2007 (Qld) ss 582, 583
752
Legal Profession Act 2004 (Qld) s 245, s 244, s 262; Legal Profession Act 2007 (Qld) s 440
(consumer dispute), s 418 (unsatisfactory professional conduct), s 419 (professional misconduct).
753
Legal Profession Act 2004 (Qld) s 429, s 437, s 292 (1); Legal Profession Act 2007 (Qld), ss 619,
621 (establishing the Legal Practice Committee), s 598, 599 (establishing the Legal Practice Tribunal).

754
disciplinary system to one with a decidedly consumer-oriented tilt where the
standard for discipline is not simply what the community of lawyers think but rather
the standard of competence and diligence that a member of the public is entitled to
755
expect of a reasonably competent Australian [legal] practitioner. These and other
relevant provisions of the Legal Profession Act that affect the regulation of a lawyers
deceptive conduct are discussed further in the next section.
5.3 I0TRODUCTIO0 TO QUEE0SLA0D LEGAL ETHICS
As introduced above, the Legal Profession Act 2007 (Qld) (the 2007 Act)
governs the practice of law in Queensland. A precursor to the 2007 Act, the
Legal Profession Act 2004 (Qld) (the 2004 Act) was intended to cure the
mischief of the profession having an ineffective and self-interested monopoly
on regulating its members while disregarding the interests of the public.
Consistent with statutory interpretation guidelines under the Acts
Interpretation Act 1954 (Qld), the purpose of the 2007 Act is: 1) to provide for the
regulation of legal practice in this jurisdiction in the interests of the administration of
justice and for the protection of consumers of the services of the legal profession
and the public generally; and 2) to facilitate the regulation of legal practice on a
756
national basis across State borders. The 2007 Act and the Queensland Law
Society Act 1952 (Qld) serve as the legal ethics norms of the legal profession in
Queensland via the 2007 Acts complaints and disciplinary system.
In addition to providing redress to consumers of legal services, the 2007 Act
aims to promote and enforce the professional standards, competence and honesty of
754
755
Legal Profession Act 2004 (Qld) s 244; Legal Profession Act 2007 (Qld), s 418.
756
Legal Profession Act 2007 (Qld), s 3 (Main Purpose).

10
757
the legal profession by disciplining legal professionals who violate such professional
standards. In addition, legal practitioners in Queensland are also subject to other
regulations governing their conduct including the Queensland Law Society Act 1952
(Qld), the Queensland Legal Profession (Solicitors) Rule 2006 (Qld) and the
Queensland Legal Profession (Barristers) Rule 2004 (Qld), though the Legal
Profession Act 2004 and the Queensland Law Society Act 1952 provide the
foundation with regards to disciplinary action against lawyers for unethical conduct.
Under section 35 (2) (ii) of the Legal Profession Act 2007 (Qld), a person is
suitable for admission as a legal practitioner only if the court decides that s/he is a fit
758
and proper person to engage in legal practice. The fit and proper standard
includes suitability matters in relation to the person upon application for admission or
759
other matters deemed relevant by the court. The fit and proper standard also
relies on a legal practitioner reaching or maintaining a reasonable standard of
760
competence and diligence. A substantial or consistent failure to reach or maintain
761
a reasonable standard of competence and diligence means that a legal
practitioner could be subject to a complaint and subsequent disciplinary proceedings
for unsatisfactory professional conduct or professional misconduct.
The Legal Services Commissioner (the LSC), appointed by the Governor
762
in Council, is the person authorised under the 2007 Act to receive complaints,
757
Legal Profession Act 2007 (Qld), s 416; Legal Profession Act 2004 (Qld), s 3.
758
Legal Profession Act 2007 (Qld), s 35 (2) (ii) (Suitability for admission); See also Legal Profession Act
2004 (Qld), s 30(1).
759
Legal Profession Act 2007 (Qld), s 31 (2). Suitability matters is further explained in s 9 of the 2007
Act and may include a persons character.
760
Legal Profession Act 2007 (Qld), s 418.
761
762

763
investigate complaints, to summarily dismiss complaints, refer them to
the Law Society or Bar Association for investigation and recommendations,
764
and to prosecute the matter.
Lawyer complaints may fall under three primary categories: 1) unsatisfactory
professional conduct; 2) professional misconduct; and 3) consumer disputes. For
the purposes of the focus of this thesis, complaints pertaining to unsatisfactory
professional conduct and professional misconduct are relevant and discussed
765
further below. Consumer disputes will not be addressed in this thesis.
In order to better understand the empirical study and analysis of the
ethics violation cases in Queensland presented in Section 5.10, it is important
to have a foundation for some key terms and principles of the legal ethics code
in Queensland and the standards by which lawyers are held accountable and
prosecuted if in violation of the legal ethics code in Queensland. The next few
sections provide the foundation of what is defined as unprofessional conduct,
unsatisfactory professional conduct, and professional misconduct.
5.4 U0PROFESSIO0AL CO0DUCT GE0ERALLY
Unprofessional conduct was defined in the Queensland Law Society Act 1952
as .(a) serious neglect or undue delay; or (b) charging of excessive fees or costs; or
(c) failure to maintain reasonable standards of competence or diligence; or (d)
766
conduct described, under another Act, as unprofessional conduct or practice. It
did not limit the type of conduct or practice that may be regarded as unprofessional.
763
764
765
Legal Profession Act 2007 (Qld), s 440 and s 441 (Consumer disputes are generally referred to a
process of voluntary mediation and do not result in a hearing).
766
Queensland Law Society Act 1952, s 3B.

The Legal Profession Act 2004 (Qld) replaced the use of unprofessional
conduct with unsatisfactory professional conduct.
5.5 U0SATISFACTORY PROFESSIO0AL CO0DUCT

767
Chapter 4, Part 4.1, section 418 of the 2007 Act deals with unsatisfactory
professional conduct and effectively states:
418 Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct includes conduct of an

Australian legal practitioner happening in connection with the
practice of law that falls short of the standard of competence and
diligence that a member of the public is entitled to expect of a
reasonably competent Australian legal practitioner.
While no specific behaviours or conduct are noted here, this definition
appears to be in line with the more consumer-oriented system envisioned by
Parliament. Whereas the prior common-law definition of the professional
standard looked to conduct that was observed or approved by members of
768
the profession of good repute and competency, the current standard of
behaviour appears to create a new, higher benchmark for the regulation of the
legal profession in Queensland. The former standard could be called the
professional standard while the latter is referred to as the public standard.
According to the Legal Services Commission (the Commission), the public
standard is a higher standard of expected conduct because the legal professionals
conduct is now assessed not only against a professional standard of what a community
of lawyers might think (duty ethics as expressed by the legal rules and codes of conduct)
but also by a reference to a standard that a member of the public is entitled
767
Legal Profession Act 2004 (Qld), s 244. See also Linda Haller, Imperfect Practice Under the Legal
Profession Act 2004 (Qld) (2004) 23 The University of Queensland Law Journal 411, 417-419.
768
See, eg, Re R, a practitioner of the Supreme Court [1927] SASR 58, 61. See also Haller, above n 767,
417-419.

769
to expect. This public standard appears to be a community ethic expressed perhaps
via social-contract principles whereby members of the public expect a certain level of
competence, diligence, and ethics from their lawyers whom they hire for a service.
The public standard is also one that encompasses more than just unethical or
improper conduct as deemed solely by a community of lawyers. The Commission
believes it also includes conduct that consumers of legal services deem unethical or
improper such as honest mistakes, errors of judgment, and poor standards of client
770
service. In creating this potentially new benchmark, it appears that legal
practitioners are accountable for two potentially conflicting standards of conduct in an
attempt to bring greater alignment between what lawyers expect of each other (legal
ethics rules) and what society and consumers expect of lawyers they hire and the legal
profession in general (an end-result or social contract ethic).
Complaints alleging unsatisfactory professional conduct are generally heard by
771
the Legal Practice Committee (LPC). The LPC is comprised of a chairperson, two
772
solicitors, two barristers and two lay members. Decisions of the LPC can be appealed
773
to the Legal Practice Tribunal (LPT) or, alternatively, with leave, to the Court of Appeal.
774
The standard of proof for an allegation of fact is on the balance of probabilities, the
satisfaction of which varies according to the consequences for
769
Legal Services Commission, Prosecution Guidelines (2006) 5; See also John Britton, The Legal Services
Commission An Overview (Speech delivered at various district law associations, September
November 2004) <http://www.lsc.qld.gov.au/speeches/2004Overview.pdf> at 9 August 2010
(stating that the phrase a member of the public is new language and raises the standard of
conduct for lawyers).
770
Legal Services Commission, Prosecution Guidelines, above n 769, 5.
771
Britton, above n 769.
772
Legal Profession Act 2007 (Qld), s 622; Legal Profession Act 2004 (Qld), ss 282(1), 469(2) (which only
had two lawyers and one lay person on the Legal Practice Committee).
773
Legal Profession Act 2004 (Qld), ss 293(1), 294(2).
774
Legal Profession Act 2007 (Qld), s 649(1). Note that this standard is intentionally lower than the criminal
standard, though conduct is sometimes perceived to be criminal in respect of the penalties and sanctions
imposed.

the relevant Australian legal practitioner or law practice employee, of finding an
775
allegation to be true. A legal practitioner could also be charge with professional
misconduct either in lieu of or in addition to charges of unsatisfactory professional
misconduct. Professional misconduct is discussed in the next section.
5.6 PROFESSIO0AL MISCO0DUCT
Chapter 4, Part 4.2, section 419 of the Legal Profession Act 2007 (Qld)
describes professional misconduct and states:
419 Meaning of professional misconduct
(1) Professional misconduct includes
(a) unsatisfactory professional conduct of an Australian

legal practitioner, if the conduct involves a substantial or
consistent failure to reach or keep a reasonable
standard of competence and diligence; and
(b) conduct of an Australian legal practitioner,

whether happening in connection with the practice
of law or happening otherwise than in connection
with the practice of law that would, if established,
justify a finding that the practitioner is not a fit and
proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit

and proper person to engage in legal practice as mentioned in
subsection (1), regard may be had to the suitability matters
that would be considered if the practitioner were an applicant
for admission to the legal profession under this Act or for the
grant or renewal of a local practising certificate.
From the literal reading of this provision, professional misconduct appears to
be a more serious allegation than unsatisfactory professional misconduct since the
legal practitioner is alleged to have engaged in conduct that not only violates the
legal ethics code (that the practitioner is not a fit and proper person to engage in law
775
Legal Profession Act 2007 (Qld), s 649(2).

10
776
practice) but also the publics expectations of how lawyers ought to
behave (conduct involves a substantial or consistent failure to reach or
777
keep a reasonable standard of competence or diligence). In many ways,
the public standard also incorporates the professions expectations of the
conduct of a reasonably competent and diligent legal professional.
Complaints alleging professional misconduct are heard by the Legal Practice
778
Tribunal whose jurisdiction is to hear and decide lawyer-discipline applications.
The Tribunal is composed of the Supreme Court judges and constituted by one of its
779
members. In addition, one member of the lay panel and one member of the
practitioner panel sit with the Tribunal to hear and decide on lawyer-discipline
780 781
applications. Decisions of the Tribunal can be appealed to the Court of Appeal.
While the sections on unsatisfactory professional conduct and professional
misconduct do not particularly discuss behaviours, the 2007 Act does provide
some context on what is meant by conduct subject to disciplinary proceedings.
5.7 MEA0I0G OF CO0DUCT U0DER THE LEGAL PROFESSIO= ACT
The Legal Profession Act 2007 (Qld) provides a non-exhaustive listing of the
types of conduct which may be considered unsatisfactory professional conduct or
professional misconduct. This list includes, but is not limited to, contravention of
782 783 784

relevant law, charging excessive fees, insolvency under administration, and
776
Legal Profession Act 2007 (Qld), s 419(1)(b).
777
Legal Profession Act 2007 (Qld), s 419(1) (a).
778
Legal Profession Act 2007 (Qld), s 601; See also Britton, above n 769.
779
780
Legal Profession Act 2007 (Qld), s 607(3).
781
Legal Profession Act 2007 (Qld), s 468(1); Legal Profession Act 2004 (Qld), s 292(1).
782
Legal Profession Act 2007 (Qld), s 420(a).
783
Legal Profession Act 2007 (Qld), s 420(b).
784
Legal Profession Act 2007 (Qld), s 420(d).
10
785
failing to comply with orders of a disciplinary body. Of particular relevance to this
thesis is section 420(c), which states that conduct for which there is a conviction for
(i) a serious offence; or (ii) a tax offence; or (iii) an offense involving
786
dishonesty may be considered a violation of the Queensland ethics code.
Under section 11(1) of the 2007 Act, a conviction includes a finding of
787 788
guilt or the acceptance of a guilty plea regardless of whether or not the
conviction is recorded on sentence. In addition, dishonesty is broadly
789
interpreted and includes fraud. As such, it would seem that this includes
deceptive or misleading conduct by the legal practitioner during negotiations.

If the Committee or Tribunal finds that charges of dishonest conduct are
found to be true, the legal practitioner is found guilty of such conduct. That finding
of guilt is considered a conviction for the purposes of section 420 of the 2007 Act
and the legal professional will subsequently be found guilty of unsatisfactory
professional conduct or professional misconduct. Two items are worth noting at
this point with regards to conduct as it does appear to impact the way ethics
790
violation cases are heard and decided in this jurisdiction.
First, there is insufficient detailed information on the types or degrees of
791
conduct which may be considered dishonest. Apart from the legal definition of
fraud, there is little guidance in the 2007 Act about what constitutes dishonesty or
785
Legal Profession Act 2007 (Qld), s 420(f).
786
Legal Profession Act 2007 (Qld), s 420(c).
787
Legal Profession Act 2007 (Qld), s 11(1)(a).
788
Legal Profession Act 2007 (Qld), s 11(1)(b).
789
Legal Profession Act 2007 (Qld), Schedule 2 Dictionary (defining dishonesty as includes fraud).
790
See Chapter 5, Section 5.9 for more discussion on the results of an empirical study of the ethics
violation cases in the Queensland jurisdiction.
791
Note: For the purpose of this thesis, dishonesty can be achieved through the use of deceptive or
misleading conduct. As such, a person who acts in a way so as to deceive or mislead someone would be
considered dishonest.

whether there are degrees or scales of dishonesty that are more egregious than
others for the purposes of an ethics violation. On its face, dishonesty in any form or
forum appears to be strictly prohibited. In the context of the use of deception in
negotiation, one is left to presume that no amount or type of deception in negotiation
is allowed under the Queensland legal ethics code. In addition, any deception that
would otherwise by acceptable under, for example, general negotiation practices, is
presumably considered an actionable offence of dishonesty in this jurisdiction.
Second, the lack of clearer distinctions between unsatisfactory professional
conduct and professional misconduct needs to be remedied. This may include a more
precise definition of what a member of the public is entitled to expect from a legal
professional versus what a member within the legal profession is entitled to expect from
their colleagues, even under the same guise of reasonable competence and diligence.
To the extent that those expectations are not clear or are conflicting, the legal
practitioner has little guidance but to be at the whim of the public on the one hand and
the expectations of the profession on the other. The same could be said of the
sometimes conflicting duties to the client, the profession, the courts, the efficient
792
administration of justice, and the publics perception of legal services.
5.8 AGGRAVATI0G A0D MITIGATI0G CIRCUMSTA0CES
Aggravating and mitigating circumstances affect the degree to which the legal
professional is prosecuted and punished for an alleged ethics violation. The
Commission has established two tests that must be satisfied post-investigation before
792
This topic is not the focus of this thesis and, as such, is not fully discussed. There are
numerous books and articles on these tripartite and sometimes conflicting duties, which
explore this topic further. The reader is encouraged to read these for further information.

it will make an application to a disciplinary body to formally prosecute an
alleged violation of the ethics code.
First, there must be a reasonable likelihood that the practitioner will be found
guilty of unsatisfactory professional conduct or professional misconduct by a
793
disciplinary body based on the evidence (the reasonable likelihood test). Second,
there must be a greater public interest in pursuing a formal disciplinary action (the
794
public interest test) rather than not formally prosecuting the legal professional.
795
The Commission must prove the allegations on the balance of probabilities.
In assessing the evidence, the Commission has the discretion to look at the
totality of circumstances, including aggravating or mitigating factors in making their
796
determination. Such factors include, but are not limited to, the seriousness of the
conduct and the need to protect the public interest, the need to send a message to
deter other practitioners or employees from engaging in like conduct, whether the
conduct involved dishonesty or taking advantage of vulnerable clients, whether
there was a genuine mistake or misunderstanding, the cooperation of the
respondent, the respondents health, age, or infirmity, whether there were any
797
previous disciplinary actions, and special circumstances that require leniency.
It is well established that the object of disciplinary action against legal
practitioners is not to exact retribution... [but] to protect the public and reputation of
793
Legal Services Commission, Prosecution Guidelines, above n 769, 5.
794
Ibid.
795
Legal Services Commission, Prosecution Guidelines, above n 769, 5.; Legal Profession Act 2004, s 479;
See also Briginshaw v Briginshaw (1938) 60 CLR 336 and >SW Bar Association v Livesey [1982] 2 NSWLR
231 at 238.
796
Legal Services Commission, Prosecution Guidelines, above n 769, 6
797
Legal Services Commission, Prosecution Guidelines, above n 769, 6-8.

798
the profession. In addition, the Commission may take certain mitigating
factors into account when considering formal prosecution of a lawyer in
violation of the ethics code. However, the review of the Queensland ethics
violation disciplinary cases discussed in Section 5.10 shows a different story,
one where post-appeal punishments and penalties amount to what could be
the moral equivalent of retribution rather than deterrence even as the
Commission may impose a more lenient disciplinary ruling.
5.9 PE0ALITIES A0D PU0ISHME0TS
The primary punishments when a legal practitioner is found guilty of
unsatisfactory professional conduct or professional misconduct are
799
suspension or striking off and a variety of costs orders.
As explained by Reynolds J in Mc>amara, an order for suspension must be
800
based upon a view that at the determination of the end of the period of suspension
the practitioner will no longer be unfit to practice because, subject to any limitation
imposed on the issue of a Practicing Certificate, his name will then be on the roll of
801
solicitors and he may resume his practice. Reynolds J goes on to indicate that the
798
Legal Services Commission, Prosecution Guidelines, above n 769, 7 (quoting Legal Services
Commissioner v Baker [2005] QCA 482).
799
See, eg, The Law Society of >SW v Mc>amara (NSW Court of Appeal, unreported 7 March 1980)
(discussing the choices of strike-off and suspension) (Mc>amara); QLS v Maxwell James Mead [1997]
QCA 083 (citing The Law Society of >SW v Mc>amara) (Maxwell James Mead); Mellifont [1981] QdR 17,
30-31 (discussing the parameters of imposing a suspension).
800
This appears to be a subjective assessment that looks to the expected conduct of the practitioner in the
future. For example, if the legal professional is suspended for six months, that period of suspension is based
on the subjective view of the Tribunal that six months is adequate punishment and rehabilitation and that the
lawyer will be re-instated and fit to practice after six months. This seems highly subjective and arbitrary.
801
Mc>amara (NSW Court of Appeals, unreported 7 March 1980)

power of suspension can be a valuable punitive measure but needs cautious
802
application where fitness and the Courts protective function is involved.
A strike-off means that the legal practitioner is no longer considered a fit and
803
proper person to practice law and is removed from the official roll of practitioners.
The practitioner would have to make a new application for admission at a future date to
be reconsidered for admission to practice law again. In the interim, the legal practitioner
may not take any new instructions from clients and is, in effect, no longer considered a
member of the profession. The legal practitioner loses his/her practicing certificate and
may not hold themselves out to the public as being a lawyer until such time as he or she
804
re-applies and is re-instated onto the roll of legal professionals
There are many critical issues in imposing suspensions, strike-offs, and costs
orders. One involves the length of time that a legal practitioner should be suspended
or struck-off. A second issue is the additional imposition of an award of costs against
the legal practitioner who has just been suspended or struck off. A final issue is the
extent to which the legal ethics codes infringe upon the lawyers personal conduct
outside of professional obligations and when the legal practitioner is not engaged in
the practice of law, such as when he or she is suspended or struck-off.
As recent disciplinary actions in Queensland have shown, the Commission may
be lenient and compassionate in taking mitigating circumstances into consideration;
however the Queensland Law Society and Attorney Generals office as well as the
courts, who operate on the basis of protecting the public interest as the
802
Mc>amara (NSW Court of Appeals, unreported 7 March 1980).
803
See, eg, Bax [1999] 2 QdR 4, 20 (Where a practitioner is found to be unfit to practice, striking off, rather
than a period of suspension, is generally appropriate.).
804
It is noted that in Queensland, there is no longer a distinction between solicitors and barristers. One is now
considered a legal practitioner. I use the terms legal professional and legal practitioner interchangeably.
10
overriding concern, appear to have taken an almost zero-tolerance attitude
towards legal practitioners who conduct themselves unethically and deceptively.
The next three sections present the results of an empirical study of the
ethics violation cases in Queensland over an eleven-year period. These sections
discuss how the Queensland jurisdiction decides ethics violation cases where the
allegations involve misleading or deceptive conduct, with a specific focus on any
such cases where the conduct took place in the context of a negotiation.
5.10 QUEE0SLA0D ETHICS VIOLATIO0 CASES
The purpose of this section is to present the results of an original study I
undertook which consisted of an analysis of the ethics violation cases in the
Queensland jurisdiction between 1995 and 2006. The study focused on cases
that alleged deceptive or misleading conduct, regardless of forum, with
special attention to cases where such alleged misconduct conduct happened
in the course of a negotiation. This section begins with a brief discussion of
some recent statistics of the Queensland Legal Services Commission (LSC)
followed by the findings of the study of Queenslands ethics violation cases.
In 2007, John Briton, the current Legal Services Commissioner in
805
Queensland, presented an update on the work of the LSC since its inception in
2004 at the Barristers Association of Queensland Annual Conference. The update
included statistics on complaints received, complaints processed, and the
subsequent disciplinary proceedings. These statistics provide an important prelude to
805
Note: John Briton is not a lawyer. This was considered an important symbolic and
significant appointment in light of the reforms that led to the enactment of the Legal
Profession Act 2004 (Qld). See also Legal Profession Act 2004 (Qld), s 414 (stating that the
Legal Services Commissioner can be a lay person or lawyer).

understanding the context of the subsequent analysis and discussion of ethics
violation cases involving misleading and deceptive conduct.
Prior to the Legal Profession Act 2004 (Qld), the Queensland Law
Society (QLS) dealt with lawyer complaints under the old system whereby the
profession disciplined members of its own profession. The QLS received
806
1,602 complaints in 2002-2003 and 1,621 complaints in 2003-2004. At the
inception of the LSC in July 2004, the Commission had a backlog of almost
1,000 unprocessed and unresolved complaints, some of which had been in
807
the old disciplinary system under the QLS for two or more years. Under the
new system, the Commission received 1,450 complaints in 2004-2005 and
808
1,074 complaints in 2005-2006. By March 2007, the Commission had
worked through the backlog and finalized resolution of these complaints. In
809
addition, the Commission continued to receive post-Act complaints.
There are perhaps two primary reasons for the reduction in the number of
complaints after the enactment of Legal Profession Act 2004 (Qld). One reason cited is
the potentially artificial high number of complaints because of the Baker Johnson law
810
firm scandal in 2002 and 2003 which dominated state and national headlines.
A second reason is most likely the process used by the QLS and the Commission to
806
John Britton, The Legal Services Commission: An Update 6 (Paper presented at the Bar Association of
Queensland Annual Conference, 1618 March 2007).
807
Britton, above n 806, 1. The old disciplinary system consisted of the Queensland Law Societys
enforcement of the legal ethics rules.
808
Britton, above n 806, 6 (stating this is a reduction of more than 130 new complaints a month to the fewer
than 90.).
809
Note: The term post-Act refers to the enactment of the Legal Profession Act 2004 (Qld) which created
the Legal Services Commission.
810
Levin, above n 587, 190 (discussing a national Queensland case involving the misappropriation of
funds from elderly clients); Nimmo, above n 748, 2, 5, 7-9; Legal Ombudsman, The
Queensland Law Society and Baker Johnson Lawyers (2003), 2, 5, 78.

811
pre-empt formal written complaints by dealing with consumer
complaints informally in the first instance and formally if the matter could
812
not be resolved to satisfaction through the informal process.
To explain the process briefly, both the LSC and QLS receive initial calls. If it
appears that the problem is minor (such as poor communication or
misunderstandings), the LSCs Compliant Officers or the QLSs Client Relations
813
Officers will attempt to resolve the matter informally and privately. If the LSC feels,
for example, that the legal practitioner has undertaken restorative steps to correct the
issues and prevent similar issues from occurring in the future, the LSC will, at its
814
discretion, dismiss the complaint in the public interest. Conversely, if the LSC is
not satisfied that the legal practitioner has taken restorative steps, the Commission
may initiate a formal written complaint and call for an own motion investigation. An
own motion investigation means that the LSC can initiate a formal investigation into a
815
matter or systemic issue without receiving a formal written complaint.
Returning to the statistical background of the complaints handled by the Legal
816
Services Commission, the Commission finalised 978 conduct matters in 2005-
817
2006. Of the 978 conduct matters, 543 were related to solicitors, accounting for
9% of all solicitors in Queensland. These complaints involved 459 law firms with the
811
Britton, above n 806, 6.
812
Note: The 2004 Act does not require an informal process and this was instituted by the Commission in
2004.
813
Levin, above n 587, 193-194. Complaints which are resolved informally and privately are not
recorded and thus there is insufficient statistics to review these complaints.
814
815
Legal Services Commission, ILP Investigations (2009) <http://www.lsc.qld.gov.au/260.htm> at 9 August
2010 (discussing an own motion investigation).
816
Note: Conduct matters refers to complaints alleging unsatisfactory professional conduct or
professional misconduct. These are different from consumer disputes which may include disputes about
fees and are not the subject of this study.
817

818
bulk of them being solo practitioner firms (258) or two-partner firms (76). Of the 978
conduct matters finalised in 2005-2006, the primary complaints ranged involved alleged
unethical conduct (4 in 10), poor service quality (1 in 5), costs/fees (1 in 6), and poor
819
communication (1 in 10). Approximately 7 in 10 of these complaints were dismissed
after investigation on the basis that there was no reasonable likelihood of a finding by a
820
disciplinary body of unsatisfactory professional conduct or professional misconduct.
In total, only about 8 in 100 of the 978 conduct matters (approximately 78 complaints)
were the subject of formal disciplinary proceedings either in the Legal Practice
821
Committee or the Legal Practice Tribunal.
The LSC 2005-2006 statistics regarding barristers in Queensland are under-
822
representative of the total number of barristers with a local practising certificate (773).
The 2005-2006 statistics for complaints against barristers are under-representative for
three main reasons. First, there are fewer barristers relative to the number of solicitors
823
with practising certificates. Second, at the time these statistics were generated, the
LSC database was not linked to the Queensland Bar Association database in order to
824
provide a complete picture of barrister complaints. Third, barristers, except for those
who accept direct briefs, deal less directly with clients and potential complainants than
solicitors, who work directly with consumers of legal
818
819
Britton, above n 806, 6-7.
820
Britton, above n 806, 7. Note: This does not mean that there was not a valid complaint by the
consumer of legal services.
821
822
Britton, above n 806, 10 (stating also that the under-representation is not statistically significant because
solicitors are more vulnerable to complaints because of the nature of their role in having more direct contact
with consumers of legal services).
823
824
Britton, above n 806, 9-10.

10
825
services most often and direct the barrister in court matters. Nevertheless, the
statistics are insightful in regards to a barristers conduct and subsequent complaints.
For example, between 2005 and 2006, the Commission received 57
complaints about barristers. Of these, 25 were classified as conduct matters
alleging either unsatisfactory professional conduct or professional misconduct. Of
the complaints received by the Commission between July 2004 and December
2006, the majority of conduct matters were by the client or clients solicitor (49%)
or opposing client (15%). In addition, 15% of the conduct matters about barristers
received by the Commission between July 2004 and December 2006 alleged
826
misleading conduct or dishonesty and 23% alleged other unethical conduct.
After investigation of the conduct matters involving barristers over the
July 2004 December 2006 period, 67% were dismissed for lack of a
827
reasonable likelihood of conviction by a disciplinary body. A further 20% of
the conduct matters were finalised as dismissed based on other factors such
828
as there being no public interest served in prosecuting the conduct.
Currently, almost 15% of all conduct matters are dismissed on these grounds.
The foregoing section provided a statistical background on the extent
to which legal practitioners are formally prosecuted for violating the
Queensland legal ethics codes. The next section focuses on the results of the
study of ethics violation cases alleging misleading or deceptive conduct.
825
Britton, above n 806, 9-10 (stating that barristers who accept direct briefs are over-represented with
regards to barrister complaints received by the LSC).
826
827
828
Britton, above n 806, 6 (noting that these figures are higher than in New South Wales).

5.10.1 Ethics Violation Cases Alleging Misleading/Deceptive
Conduct (1996 2006)
In attempting to determine whether legal ethics codes are successful in
regulating the deceptive behaviours of legal professionals in negotiation, I undertook
a study of the Queensland ethics violation cases between 1996 and 2006. The study
looked at three primary factors: 1) the total number of ethics violation cases per year
where the allegation was misleading or deceptive conduct; 2) the context in which
the alleged violation occurred (e.g., in court or during a negotiation); and 3) the
impact of aggravating or mitigating circumstances on a finding of guilt or during the
punishment phase. Each of these primary factors is discussed below.
First, the focus of the study was on cases where the alleged violation was
misleading or deceptive conduct and cases that were formally prosecuted via formal
disciplinary hearings. The period of eleven (11) years was selected because of the
availability of case materials as well as because such a time period would be
sufficient to show any major trends. The cases reviewed and analysed as part of this
829
empirical study were derived from the Commissions public discipline register.
These cases are those which could not be resolved through the Law Societys or the
Commissions informal pre-emptive complaints handling process.
Between 1996 and 2006, there were approximately twenty (20) formal
disciplinary cases raised against barristers and solicitors involving some type of
deceptive or misleading conduct resulting in the legal practitioner being found guilty of
830
unsatisfactory professional conduct, professional misconduct, or both. Table 5.1 and
Chart 5.2 below provide both a breakdown of the number of cases per year and a
829
Legal Profession Act 2004 (Qld), ss 296 and 474; Legal Profession Act 2007 (Qld), s 472.
830
See Chart 5.2 for a graphical representation of these cases over the years.

graphic representation of the total number of cases across the 1996 - 2006 periods,
respectively.
Table 5.1: Ethics Violation Cases Alleging Deceptive/Misleading

Conduct - Queensland, Australia (1996 - 2006)
Chart 5.2: Ethics Violation Cases Alleging Deceptive/Misleading

Conduct - Queensland, Australia (1996 - 2006)
Ethics Violation Cases Alleging Deceptive/Misleading Conduct -

Queensland, Australia (1996 - 2006)
3.5
2.5
# of Cases
1.5
0.5
0
1995
# Cases (Deception)

10
With regards to the deceptive or misleading conduct subject to discipline,
approximately seven (7) of the cases involved misappropriation of client funds as a
result of or in relation to a violation of duties under the Trust Accounts Act, four (4)
cases involved submitting or presenting documents or affidavits that were false or
with intent to mislead, one (1) case involved attempting to persuade a potential
witness to perjure, four (4) cases involved failure to disclose information to a
professional body or disclosing information to a professional body that was false or
with intent to mislead, one (1) case involved fraudulent conduct in a personal
capacity whilst relying on professional status, one (1) case involved excessive fines
and dishonesty in charging fees, and one (1) case involved deceptive conduct in
communicating with others and opposing counsel. A summary of the alleged
deceptive or misleading conduct is included below in Table 5.3.
Table 5.3: Ethics Violation Cases Summary of Alleged

Deceptive or Misleading Conduct (1996 - 2006)
0umber
Second, in addition to the general statistics on ethics violation cases
alleging misleading or deceptive conduct, the study looked at the context in
which the alleged violation occurred and the effect of any aggravating or
mitigating circumstances on the final outcome of the case.

With regards to the context in which the offending conduct occurred, most
involved daily practice. Of the twenty (20) cases that were the focus of this study, it
appears that approximately sixteen (16) of the cases involved ethics violation cases
where the conduct occurred during the course of daily practice. In addition, three (3)
of the cases involved ethics violations where the alleged conduct occurred while in a
formal hearing or in relation to a matter involving a professional body, such as an
application for admission to the bar. Finally, one (1) case involved an ethics violation
where the conduct alleged occurred during the course of handling a personal
transaction (personal conduct) which allegedly adversely reflected upon the
831
profession to such a degree that formal disciplinary action was warranted.
In the context of this thesis and the issue of lying in negotiation, only one
case was identified where the deceptive or misleading conducted occurred
during negotiations. The Mullins case is discussed further in Section 5.10.2. The
lack of formal prosecution of deception in negotiation appears to indicate that
negotiation behaviour is not a prime focus of legal ethics violation cases.
With regards to the impact of aggravating and/or mitigating
circumstances on the decision of the case, in nearly each of the cases
reviewed, aggravating or mitigating circumstances were presented to support
a finding of guilty or not guilty or to support the final sentencing. The common
aggravating and mitigating circumstances cited and extracted from the cases
in this study are listed in Table 5.4 below.
831
See Appendix 2 (Queensland Ethics Violations Cases (1996 - 2007) Summary Analysis)
for further information.

Table 5.4: Ethics Violation Cases Common Aggravating and
832
Mitigating Circumstances (1996 - 2006)
Aggravating Circumstances
Failure to pay restitution for Restitution made for any monies
moneys lost; lost by client;
Failure to show remorse for conduct; Years of experience (sometimes
Acknowledging wrong conduct on this was considered an
previous violation yet continuing aggravating circumstance);
to engage in wrong conduct; Showing remorse;
repeat offenders; Pleading guilty, conveying
Not cooperating with Law remorse, apologising;
Society investigations; No active or intentional deception;
Prior findings and convictions Conduct was not intended to
of unprofessional conduct; create personal pecuniary
Persistent in wrong conduct over advantage at the expense of
a period of time; not an isolated clients disadvantage in monies
incident
In reviewing the impact of aggravating or mitigating circumstances on each
case, it appears that, in particular, the range of mitigating circumstances varied yet
seemed to have little or no effect on the final outcome. By this I mean that, generally,
no single aggravating circumstance or perceived aggravating circumstance had greater
weight than mitigating circumstances. In nearly all cases where the first level tribunal
833
or committee hearing took into account mitigating circumstances, the case was
subsequently appealed to the Court of Appeal by the Attorney-General and Minister
of Justice. On appeal, in nearly all of these cases, the order of the Tribunal was set
834
aside and the legal practitioner was struck off the roll. Aggravating or mitigating
832
See also Appendix 3 (Queensland Ethics Violations Cases (1996 - 2007) Analysis for
Aggravating/Mitigating Circumstances) for a detailed analysis of aggravating and mitigating
circumstances per each case analysed in this empirical study.
833
Note: As a result of taking into consideration the mitigating circumstances, the Tribunal or Committee generally
decided to impose a heavy fine with costs or a suspended sentence with costs instead of heavier sanctions such
as a strike-off. See Chapter 4, Section 4.9 (Penalties and Punishment) for more information.
834
See Appendix 2 (Queensland Ethics Violations Cases (1996 - 2007) Summary Analysis) for further
information.

circumstances were not necessarily weighed equally, objectively, or even on the
balance of probabilities that the practitioner could reform his conduct through less
severe punishments. The overriding reason provided for cases being overturned on
appeal was the protection of the public interest, even to the significant detriment to
the lawyer in terms of lost income, loss of a viable profession, loss of the only means
to earn a living for which s/he was trained, and financial ruin in some cases.
It should also be noted that the fourteen (14) cases between 1996 and July
2004, when the Commission came into existence, were all prosecuted directly by the
Law Society in conjunction with the Attorney-General and Minister for Justice, where
there was no lay member representation on the panels deciding the case.
Interestingly, the six (6) cases formally prosecuted after the enactment of
the 2004 Act seem to indicate a greater deference to the findings and orders of
the Tribunal even after the case was appealed by the Attorney General or
Minister for Justice. In addition, the cases prosecuted by the Commission seem
to take into account the mitigating factors at least in equal measure with
aggravating circumstances. Whether the fact that the current Commissioner is a
non-lawyer and the current Legal Practice Tribunal has lay member
representation has an impact on the findings and orders at first level hearings is
difficult to establish. It could have very little impact as lay members have no
legal background, have expressed being overwhelmed by the process at times
835
and have felt daunted when participating in the post-2004 Act cases.
On the other hand, the presence of lay members and those who actively
participate in the hearings would likely bring to the hearings the ethical perspective of
835
See, eg, Levin, above n 587, 194-195 (discussing briefly some comments from lay members
participating in the Legal Practice Committee and Legal Practice Tribunal for first level hearings.).

the community in which they live as well as the ethics standards of society in general. As
Levin through his informal interviews with lay members of the Legal Practice Tribunal,
lay members may have disagreed with the outcomes of the Tribunal hearing but felt
836
inhibited in terms of raising questions and talking during hearings.
In addition, even where lay members may have had strong opinions
against a proposed resolution to the case, they would have to write a dissent
837
from the majority view, something they may feel ill-equipped to do. Finally,
with regards to this thesis, of the twenty (20) cases that composed the focus of
this empirical study, only one (1) case had a dissenting opinion and that opinion
838
appears to be drafted by a legal practitioner, not a lay member of the panel.
Finally, none of the pre-2004 Act cases alleging deceptive or misleading
conduct were in the context of formal negotiations. However, during the post-
2004 Act, when the Legal Services Commission took over the lawyer discipline
system, it appears that the LSC took a much broader view of the context in which
a lawyer may violate the ethics codes. Of significant importance to this thesis, the
LSC did formally prosecute one case that involved potentially deceptive or
misleading conduct in the context of a negotiation that was being conducted at
mediation. The case involved a barrister who allegedly engaged in deceptive or
misleading in a 2003 insurance claims negotiation that took place during
mediation. This case will be discussed in more detail in the next section.
836
Ibid.
837
Ibid.
838
Bax [1998] QCA 089 (Pincus JA) (stating It is not, in my opinion, every proved act of
dishonesty on the part of the practitioner which justifies a substantial penalty; dishonesty,
like other forms of misbehaviour, has grades of seriousness.).

5.10.2 The Mullins Case Deception in 0egotiation
As previously discussed, during the period between 2005 and 2006, the
Commission received 1,074 new complaints, of which 978 were classified as conduct
839
matters. Of the 978 conduct matters finalised in 2005-2006, approximately 8 in 10
840
(78 cases) were the subject of formal disciplinary proceedings. The Mullins
841
case was the only case formally prosecuted in which the allegation was alleged
deception in the context of a negotiation conducted during a formal mediation
process. As such, the Mullins case represents less than 1% of all conduct matters
finalised in 2005-2006 and less than 2% of all conduct matters subject to formal
disciplinary proceedings. Of the twenty (20) cases over a period of 1996 to 2006 that
were the subject of this empirical study where formal disciplinary proceedings were
initiated and alleged deceptive or misleading conduct, Mullins appears to be the only
842
case in which the violations occurred in the context of negotiations.
Theoretically, if between 2002 and 2004, the Queensland Law Society received
a total of 3,223 complaints and between 2004 and 2006, the LSC received 2,525
complaints with approximately 1,000 new complaints in 2007, then the Mullins case
represents 1 in a total of approximately 6,747 complaints over a five-year period where
843
deception in negotiation was formally prosecuted. This does not even take into
account the total number of complaints received between 1996 and 2002 which
839
840
841
Legal Services Commissioner v Mullins [2006] LPT 012 (Mullins).
842
See Appendix 2 (Queensland Ethics Violations Cases (1996 - 2007) Summary Analysis) for more
detailed information.
843
Note: These estimates were calculated from statistics provided in the following publication: John Britton,
The Legal Services Commission: An Update 6 (Paper presented at the Bar Association of Queensland
Annual Conference, 1618 March 2007). It should be noted that this is significant given that lawyers
negotiate all the time in all facets of their profession and that negotiation is considered a critical and
indispensable skill for successful and effective lawyers.

may have alleged similar misconduct and not been formally prosecuted or
the total number of complaints alleging similar, yet less egregious conduct,
which may have been informally and privately finalised by the Queensland
Law Society or the Commission.
Statistically speaking, the Mullins case may be considered an important
case because it appears to be an aberration as compared with other types of
cases formally prosecuted by the LSC and represents the LSCs power of broad
discretion to prosecute cases under the legal ethics rules which may have
previously been considered off-limits or non-actionable. For these reasons and
others as explained by the Tribunal, Mullins is a watershed case in terms of legal
ethics and a seminal case in terms of permissible or actionable deception during
negotiations in the Queensland jurisdiction, a jurisdiction that, unlike the United
States, makes no exceptions on the prohibition of all forms of dishonesty,
whether in negotiations, mediations, or elsewhere. Having placed the Mullins
844
case in context, the following is a detailed discussion of the case.
Mullins is a prominent Queensland barrister (respondent) who, in 2003, was
retained to represent a former builder (White-claimant) who had become a
845 846
quadriplegic as a result of a motor vehicle accident in 2001. The case revolved
around Mullins conduct in connection with negotiations during a mediation setting for a
847
claim for compensation for personal injuries against an insurer, Suncorp.
844
Note: Because the case is publically available via the Commissions public discipline register, names
as used in the Tribunals decision are also used here for ease of reference and clarity of discussion.
845
Quadriplegic is the inability to use all four limbs.
846
Mullins, [2006] LPT 012, 2 [2]. See also Annabelle McDonald, Patel case lawyer fined for
deception, The Australian (Friday, November 24, 2006).
847
Mullins, [2006] LPT 012, 2 [1], [2].
10
In April 2001, White (claimant-client) retained solicitors in order to pursue
848
a claim for personal injury damages. During the period between 2001 and
2003, the claimants solicitors presented to Suncorp (insurer) various reports
including medical reports and comprehensive assessments (Evidex reports)
regarding the claimants life expectancy, work-life expectancy, and future earning
849
capacity. By mid-Sept 2003, a mediation was arranged in an attempt to
850
negotiate a compromise of the claimants personal injury claims. Both the
claimant and insurer retained barristers to represent their interests in the
851
mediation. The claimant and his solicitors retained Mullins.
On 16 September 2003, Mullins held a conference with the claimant and the
852
claimants solicitor to prepare for the mediation scheduled for 19 September 2003.
At this pre-mediation conference, the claimant disclosed that he had
secondary cancer which had been discovered on or about 1 September
853
2003 and for which he was undergoing chemotherapy treatments.
Apparently, there were no medical reports or records about the facts related to the
854
cancer. Mullins advised the claimant and his solicitor that he thought the cancer facts
855
should be disclosed to Suncorp prior to the mediation. The claimant, however,
instructed both his solicitor (Garrett) and barrister (Mullins) to not disclose the cancer
848
Mullins, [2006] LPT 012, 2 [2].
849
Mullins, [2006] LPT 012, 2 [3] [6].
850
Mullins, [2006] LPT 012, 2 [7].
851
Ibid.
852
Mullins, [2006] LPT 012, 2 [8].
853
Mullins, [2006] LPT 012, 2 [9].
854
Note: There may have been reports but these reports were likely not generated as part of the 2001 Evidex
reports pursuant to the 2001 accident. Whether they should have been included and the Evidex reports
regenerated with updated information seems to be a key material issue.
855
Mullins, [2006] LPT 012, 3 [10]. Given Mullins experience, he would have known this would impact life
expectancy and all future estimates for damages. This was also seen as a material issue in the Tribunals
opinion, that being the timing of when Mullins became aware of this fact.

856
facts to Suncorp unless he was legally obligated to do so and to proceed with the
mediation. Apparently both Garrett and Mullins felt that they were not legally obligated to
reveal the cancer facts to the insurer (Suncorp) and Mullins subsequently presented
Suncorps barrister (Kent) with a two-page document outlining the claimants schedule of
857
damages and argument at mediation. The Plaintiffs Outline as prepared by Mullins
repeatedly relied on and referred to the Evidex report as the basis of the proposed
858
settlement figures contained in the Plaintiffs Outline. This was despite the fact that
Mullins knew of the life expectancy assumption in the Evidex reports as based on
medical reports in 2001 and also presumably knew that the life expectancy assumption
859
would be different given the 2003 disclosure of the claimants cancer. Between 16
September 2003 and 18 September 2003, Mullins spoke with Kent (Suncorps barrister)
and, according to the Statement of Agreed Facts, again stated that the claim for future
economic loss was based on the [Evidex] report and did not seek to correct or
860
disclaim any assumptions contrary to the Evidex reports. Mullins representations were
apparently accepted to the extent that Suncorps barrister and representatives of
Suncorp concluded that consistent with the
856
Mullins, [2006] LPT 012, 3 [10]. See also Motor Accident Insurance Act 1994 (Qld), s 45(3) (requires the
claimant to disclose to the insurer a significant change in the claimants medical condition, or in other
circumstances, relevant to the extent of the claimants disabilities or financial loss within 1 month of
becoming aware of the change.). As the claimant was bound by the Act, the timing of disclosure would have
significantly affected the claimants payout and was a material issue for the insurer, Suncorp.).
857
Mullins, [2006] LPT 012, 3 [11] (called Plaintiffs Outline of Argument at Mediation by the claimant
and referred to here as the Plaintiffs Outline).
858
Mullins, [2006] LPT 012, 3 [11] [13].
859
Mullins, [2006] LPT 012, 3 [13].
860
Cf Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592, 605 (Per Gleeson CJ, Hayne and Heydon
JJ) (stating In applying those principles, it is important that the agents conduct be viewed as a whole. It is not
right to characterise the problem as one of analysing the effect of its conduct divorced from disclaimers
about that conduct and divorced from other circumstances which might qualify its character. Everything
relevant the agent did up to the time when the purchasers contracted to buy the Rednal land must be taken
into account.).

Evidex report, the claimant had a life expectancy of 80% of that of a normal
861
man of his age.
During the same period and by 18 September 2003, Mullins apparently spoke
to senior counsel about his situation regarding disclosure of the cancer facts and
862
also conducted some research. He initially thought that the cancer facts should be
863
disclosed. However, after receiving advice from senior counsel, Mullins concluded
that as long as the claimants lawyers [Mullins] did not positively mislead Suncorp
and its [Suncorp] lawyers about the claimants life expectancy, they would not be
864
violating any professional ethical rules by not disclosing the cancer facts. Mullins
discussed this conclusion with White (claimant) and Whites solicitor and reiterated
that White was not obligated to disclose the cancer facts, and that it was not
865
appropriate to make positive assertions during the mediation.
The mediation proceeded on 19 September 2003 as scheduled, with
Suncorp continuing to rely on the Evidex reports and Mullins or the claimants
solicitor making no corrections to the assumptions based on changed circumstances
866
on the part of the claimant. The claim was settled at mediation which, according to
867
the Tribunal was not conducted subject to the Uniform Civil Procedure Rules.
861
Mullins, [2006] LPT 012, 4 [14] - ]16], 2 [4].
862
Mullins, [2006] LPT 012, 5 [19].
863
Ibid.
864
Ibid.
865
Mullins, [2006] LPT 012, 5 [20]. The positive assertions seem to be any statements made without being
asked that might have a negative impact on the claimants ability to get a maximum settlement from the
insurer.
866
Mullins, [2006] LPT 012, 5 [21] [24]. See also McDonald, above n 846 (saying the claim was settled
for over $1 million).
867
Mullins, [2006] LPT 012, 5 [15], n 7 (citing Rule 325 of the Uniform Civil Procedure Rules 1999 (Qld),
which requires that the parties must act reasonably and genuinely in the mediation). This particular
mediation appears to be one conducted outside of the court-annexed mediation (i.e. a private mediation)
as envisioned by the Uniform Civil Procedure Rules 1999 (Qld).

In 2006, the Legal Services Commissioner pursued formal disciplinary action
against barrister Mullins alleging that Mullins was guilty of professional misconduct in
connection with negotiationsthat the respondent knowingly misled an insurer and
868
its lawyers about this clients life expectancy. The complaint alleged that the result
of this misleading behaviour was that had Suncorp known about the cancer facts and
potential change in life expectancy, they would not have agreed to the settlement at
869 870
mediation. Mullins was accused of fraudulent deception.
During the Tribunal hearing, Mullins contended that because the negotiations
871
were of a commercial nature, there was a tacit, common assumption thatthe
872
parties would rely exclusively on their own resources and information, presumably
meaning that there was no duty of disclosure. Furthermore, it seems Mullins argued
that there was no reasonable expectation that influential information communicated
873
during the negotiations would not knowingly be false. In other words, Mullins
appears to argue that because the negotiations were a commercial matter and
outside of the court rules, legal ethics rules requiring honesty did not apply, there was
not duty of disclosure as would apply in litigation, and the normal reasonable
expectations were that negotiations would be conducted under generally accepted
principles of negotiation, which allow for some permissible deception or lack of
affirmative disclosure, such as lies by omission. In this case, Mullins was trying to get
the best possible settlement for his client with duty to the client trumping a duty of
candour to the court or the profession.
868
Mullins, [2006] LPT 012, 2 [1].
869
Mullins, [2006] LPT 012, 5 [23].
870
Mullins, [2006] LPT 012, 5 [23], 8 [31]. See also McDonald, above n 846.
871
Mullins, [2006] LPT 012, 6 [25].
872
Ibid.
873
Mullins, [2006] LPT 012, 6 [25].

874
It appears the Tribunal was startled by these arguments and equally resolute
875
to set right the obligations of legal professionals in this context. First, the Tribunal
established that the commercial aspect of the negotiations did not preclude a duty to be
honest during negotiations stating that negotiations between a potential litigant and a
tortfeasors insurer for a damages claim may be tinged with a commercial aspect serves
rather to support the idea that the negotiations anticipate a measure of honesty from
876
each other. After all, honesty promotes confidence in the process.
The Tribunal quoted Lord Bingham of Cornhill in the HIH Casualty case as
stating that [p]arties entering into a commercial contractwill assume the
877
honestyof the other[s]; absent such assumption they would not deal.
Second, the Tribunal affirmed that just because lawyers participate in
negotiations of such personal matters does not mean that legal consequences
878
will not attach to intentional deception about material facts.
Third, the Tribunal referred to the relevant rules of the Bar Association of
879
Queenslands Code of Professional Conduct, namely Rules 51 and 52, which
874
Mullins, [2006] LPT 012, 6 [26] (the Tribunal states that the contentions are at first blush startling
because they seem to say that neither law nor a more demanding ethical duty apply in this situation,
something the Tribunal obviously considered void of merit).
875
Mullins, [2006] LPT 012, 6 [27] (Context influences the extent of legal and equitable obligations of
disclosure. (citing Donne Place Pty Ltd v Conan Pty Ltd [2005] QCA 481, [42]-[44]; Magill v Magill [2006] HCA
51, [48], [58], [156]).
876
Mullins, [2006] LPT 012, 6 [27].
877
Mullins, [2006] LPT 012, 6 [27] (citing HIH Casualty and General Insurance Ltd v Chase
Manhattan Bank [2003] UKHL 6, [15]; [2003] 2 Lloyds Rep 61, 68).
878
Mullins, [2006] LPT 012, 6 [28], note 15 (citing Magill v Magill [2006] HCA 51, [140] (stating [t]he cases in
which a court could conclude that the party making the representation, and the party to whom it was made,
both intended at the time of the representation that legal consequences should attach to the veracity of what
was said or written would be rare indeed. Unless both parties are shown to have intended that what was said
or done should give rise to legally enforceable consequences, the action for deceit will not lie.). Magill
concerned a family law matters and the court distinguished representations in the context of marriage versus
representations in the context of contracts. Mullins was about a contractual matter and therefore, actions
could have legally enforceable consequences.
879
See Chapter 4 for more information on the applicable legal ethics rules in Queensland.

impose a positive duty of honesty, and asserted that mediations are not an honesty-
880
free zone in which barristers can neglect or shed their ethical obligations.
Finally, the Tribunal found that Mullins had intentionally deceived the
881
opposing barrister, the insurer Suncorp and Suncorps representatives. The
Tribunal further found Mullins guilty of professional misconduct because the
fraudulent deceptioninvolved such a substantial departure from the standard
882
of conduct expected of legal practitioners of good repute and competency.
However, having found Mullins guilty of professional misconduct, the Tribunal
883
fully acknowledged and gave weight to certain mitigating circumstances and only
884
imposed a penalty of a substantial fine and a public reprimand, stating that the
885
protection of the public does not require more severe sanctions since the public
reprimand and fine would be a sufficient deterrent to similar future behaviour. As
Legal Services Commissioner John Briton stated post-hearing, the decision has
provided a reminder to all members of the profession to act honestly and to be
candid and accurate in the representation of their clients cases whether in court, in
886
mediations, or in everyday dealings.
The Tribunals decision in Mullins could be described as a double-edged
sword. As discussed earlier, this case and the context of this case seem anomalous
when compared to the thousands of complaints received and hundreds of formal
disciplinary proceedings finalised over the last twenty years. While the decision in
880
Mullins, [2006] LPT 012, 7 [29]; See also Legal Profession (Barristers) Rule 2004 (Qld), Rule 21 (requiring
candour even in a matter that may be of adverse interest to the client) and Rule 14 (in which court is defined
to include a mediation).
881
Mullins, [2006] LPT 012, 7 [30].
882
Mullins, [2006] LPT 012, 8 [31].
883
Mullins, [2006] LPT 012, 8 [33] [34].
884
Mullins, [2006] LPT 012, 9 [36].
885
Mullins, [2006] LPT 012, 8 [35].
886
McDonald, above n 846.

Mullins is important, there is a real likelihood that the decision will not have a
significant impact on the future potentially deceptive behaviours of legal
practitioners in similar circumstances. This is because the case represents only a
single case in over 11 years that involves negotiation behaviour. In addition, the
punishment imposed by Tribunal is not a deterrent to future such conduct.
On the one hand, the Mullins decision appears to have clarified and perhaps
broadened the reach of legal ethics rules and positive duties of candour and
truthfulness in Queensland beyond the comfort zones of most legal professionals.
As the Tribunal stated, legal practitioners should not consider mediations or
negotiation behaviour in mediation as exempt from duties of honesty and candour.
One the other hand, by imposing a penalty on the barrister that is: 1) like a
slap on the wrist; and 2) substantially lenient as compared with prior decisions of the
Tribunal or Court of Appeals, the Tribunal may have simply conducted a symbolic
public flogging of one lawyer while, at the same time, tacitly acknowledging and
condoning such behaviour in the future. Certainly, if one is to believe the findings of
Davis study of the negotiating attitudes and beliefs of personal injury lawyers in
887
Queensland, Mullins behaviour is normal, to be expected, and essential to the
nature of personal injury claims negotiations in Queensland, where both plaintiff and
defendant lawyers misrepresent and exaggerate offers in order to obtain some sense
888
of justice for their client. At the same time, Mullins reputation, to the extent that his
clients and colleagues are aware of this ethics violation case and therefore
concerned by such conduct, may be impacted by this matter.
887
Davis, above n 126.
888
See Chapter 3 for a list of deceptive behaviours of personal injury lawyers based on Davis study.

In conclusion, the foregoing discussion of the Mullins case highlights a
key finding of the empirical study of the Queensland ethics violation cases
over the last ten years, namely that there is little to no formal prosecution of
legal professionals who engage in allegedly deceptive conduct in negotiation.
There could be several reasons for the lack of little to no formal
prosecution of such cases. First, as discussed previously, there may be a
significant number of like cases which are not reported, cases which are
reported and resolved or settled informally outside of the LSC dispute
process, or cases which are reported and resolved informally within the LSC
process so that formal prosecution does not serve the public interest.
Another possibility for lack of little or no formal prosecution of such cases is
that deceptive behaviour in negotiation does not happen as frequently in this
jurisdiction as in other jurisdictions; however, in the case of personal injury claims,
this would be contrary to Davis findings that strategic deception is a norm between
889
plaintiffs and defendants in personal injury claims. The Mullins case confirms the
findings of Davis study in this regard. The difference is that the LSC decided to
formally prosecute Mullins in this instance and possibly decided not to formally
prosecute other legal practitioners who handle similar personal injury claims either
because such claims were informally settled or the matter was not deemed
egregious enough to warrant formal prosecution in the interests of the public.
In cases where there is formal prosecution, the sanctions appear to be
smaller and symbolic rather than large sanctions geared towards retribution,
punishment, or rehabilitation of the legal professional in this regard.
889
See Chapter 2, Section 2.5.3 (Research About Legal Negotiation) for more information
on Davis study.

In summary, section 5.1 defined the success of legal ethics codes in
preventing deception in negotiation, in part, by its ability to serve as a deterrent to
prevent future such conduct through effective formal prosecutions and low
recidivism rates which then protect the public and reduce the public perception of
890
lawyers as deceptive or misleading. In assessing whether legal ethics codes
are successful in curtailing deception in negotiation, several points can be made.
First, the statistics of this unique study demonstrates a consistent
pattern of ethics violations, sometimes increasing every year despite the
presence of the same legal ethics code across those years. The fact that
only 20 cases of misleading and deceptive behaviour over an eleven-year
period are formally prosecuted seems to indicate that there is not a large
focus on deterring or punishing such conduct, especially in negotiations.
Second, the Mullins case highlights the findings of the research on legal
negotiation behaviour in personal injury cases as well as the effectiveness of ethics
codes. The Mullins case seems to confirm Davis findings that the use of deception in
891
personal injury cases is considered normal and acceptable. Furthermore, the
Mullins case appears to reinforce Wilkinson et als, Moliternos, and Lambs research that
while lawyers do face ethical dilemmas, the legal ethics codes are not the primary source
of guidance used by lawyers in deciding ethical dilemmas and, at times, do not provide
892
sufficient guidance. In the case of Mullins, for example, the barristers
890
See Chapter 5, Section 5.1 (Introduction) for more information.
891
See Chapter 3, Section 3.4 (Deception in Negotiation and Personal Injury) for more information on this
topic.
892
See Chapter 2, Section 2.5.4 (Research About Legal Ethics) for more information on this topic.

reliance on advice from senior counsel appears to have taken precedence over his
893
own initial decision towards full disclosure, thus resulting in an ethics violation.
Finally, the legal ethics codes of this jurisdiction and similar jurisdictions,
at least on the basis of this study and confirmed by the research in Chapters 2
and 3, support that possible conclusion that legal ethics codes, without more, are
not as successful as they can be in curtailing deception in negotiation. As such,
more must be done to ensure that the legal ethics codes can effectively and
successfully curtail deception in negotiation. This can be achieved through the
implementation of a set of integrated policy reforms as discussed in Chapter 7.
The main focus of this chapter was to present the results of an empirical study
of the legal ethics violation cases in the state of Queensland, Australia. This common
law jurisdiction was selected for a number of strategic reasons: 1) sufficient number
of cases were available to support the study objectives; 2) the ethics violation cases
for Queensland were readily available via a central public register; 3) the legal ethics
code of Queensland is sufficiently different from the ABA MRPC so it served as a
useful point of comparison between the actual rule and the perceived or actual
behaviours in contravention of the ethics rules; and 4) the study provides an
analytical framework which can be used in future, similar studies.
After introducing the key statutory and disciplinary framework within the
Queensland jurisdiction as well as some recent statistical data on prosecutions of ethics
violation cases, this chapter discussed the results of the study of ethics violation
893
See Chapter 5, Section 5.9.2 (The Mullins Case Deception in Negotiation) for a full
discussion of the Mullins case. See also Mullins, [2006] LPT 012.

cases. A notable conclusion from the study is that across a decade of prosecuting
ethics violation cases involving deceptive or misleading conduct, only one case
involved negotiation. A possible yet unlikely conclusion is that lawyer-negotiators in
the Queensland jurisdiction are never deceptive or misleading and if they are, they
are vehemently prosecuted in a manner that provides sufficient deterrence against
future such conduct by other lawyers. A more likely and reasonable conclusion,
however, is that this single case was a token case prosecuted only because of the
notoriety of the offending lawyer. Furthermore, a lawyers deceptive and misleading
behaviour in negotiations is not prosecuted with the same fervour as other, perhaps
more egregious, violations of the Queensland legal ethics codes.
The next chapter consolidates the findings of the three primary research
questions introduced in Chapter 1 and subsequently discussed in Chapters 3, 4,
and 5. The focus of the next chapter is to establish the implications of the
foregoing research findings on the need for strategic, integrated policy reforms
aimed at addressing this timely, yet unresolved issue within the legal profession.

CHAPTER 6
THE FOU.DATIO. FOR CHA.GE
Wholesale cultural change is essential if we are to give life

to the promise of the law. [Legal culture has] failed to evolve
sufficiently with the law. [The alternative is being to be part
of] a revolution with the ordinary person in mind.
894
~ Victorias Attorney-General Rob Hulls
The preceding three chapters presented and discussed the analyses of the three
primary research questions established in Chapter 1, including the findings from an
analysis of the potentially deceptive behaviours of lawyers during negotiations, the
ways in which legal ethics codes attempt to regulate such behaviours and a qualitative
analysis of the legal ethics violation cases in one common law jurisdiction. The
purpose of this chapter is to summarise the critical findings and establish the case for
change regarding the central issue of managing the use of potentially deceptive
conduct by lawyers in negotiations.
6.1 I.TRODUCTIO.
Victorias Attorney-General Rob Hulls quote above echoes the sentiments of
Victorias Director of Public Prosecutions, Jeremy Rapke QC, regarding the fundamental
895
problems of the states adversarial criminal justice system. However, the sentiments
apply equally across the entire legal system since the genesis of the professions current
adversarial model for both civil and criminal matters stems from the criminal justice
896
system model established since the seventeenth century. Today,
894
Merritt, above n 560, 1.
895
896
Carrie Menkel-Meadow (2004) Is the Adversary System Really Dead? Dilemmas of Legal Ethics as
Legal Institutions and Roles Evolve in Jane Holder, Colm O'Cinneide and Michael Freeman (eds.) Current
Legal Problems 85-115 (2004). Menkel-Meadow provides a historical view of the legal

whether in criminal or civil matters, the primary and most often-used skill by lawyers
897
on a daily basis is negotiation. Over the last 20 years, negotiation has played an
898
even more important role in light of the vanishing trial phenomenon, the increased
mandate for settlement negotiations, and the ever-expanding use of alternative
899
dispute resolution processes such as mediation and arbitration. As Chart stated,
negotiation is therefore an inevitable and major part of what lawyers do, in terms
both of their significance of their negotiation efforts for clients, and the amount of time
900
they devote to it. As such, how lawyers negotiate and the tactics and behaviours
that form part of the lawyers negotiation repertoire transcend the individual lawyer
901
and are a reflection of how the profession operates. Most importantly, it creates an
image and a perception in the eyes of the public of lawyers in particular and the legal
902
profession in general. How individual lawyers and the profession operate is
important because, as Victorian Attorney-General Robert Hull stated, ultimately, the
law and the legal system is a taxpayer-funded system charged with solving peoples
problems, with stopping and changing behaviour and, in doing
process from the trial by battle to trial by court to the current evolution involving extensive use of
alternative dispute resolution processes. See also Rhode, above n 151, 51-58 (discussing the
evolution of the advocates role and the current and dominant role morality of lawyers).
897
See, eg, Menkel-Meadow, above n 2; Williams, above n 202; Ross, above n 108; Rubin, above n 69; See
also Lakhani, above n 268, 61, n. 6-9 (citing various sources to indicate the extensive use of negotiations in
legal work causing over 955 of all cases filed for litigation to be settled before trial); Wetlaufer, above n 31,
1220.
898
Marc Galanter, Reading the Landscape of Disputes: What We Know and Dont Know (And Think We
Know) About Our Allegedly Contentious and Litigious Society (2003), 31 University of California Los Angeles
Law Review 4, 64-65. (the term settle here means terminate in an outcome agreed upon by the parties,
sometimes formally ratified by the court, sometimes only noted as settled, and sometimes, from the court's
viewpoint, abandoned. The settlement process may begin even before the suit is filed. For example, a great
majority of automobile injury claims are settled before filing.).
899
Jane R Chart, Lawyers Work and Legal Education: Getting a Better Fit (2000) 19 Mew Zealand
Universities Law Review 177, 178-179.
900
Chart, above n 899, 178-179.
901
Chart, above n 899, 178-179 (discussing how modern legal firms work in teams where they must
manage both internal negotiations within their own teams as well as external negotiations with opposing
parties on behalf of their clients.)
902
See, eg, Wetlaufer, above n 31, 1220 (The problem of lying in negotiations is central to the
profession of law).

903
so, with keeping the public safe. When lawyers feel the need to use potentially
deceptive negotiation practices, they might compromise the system and its broader
goals. Therefore, now more than ever, the issue of lawyers potentially deceptive
conduct in negotiation requires urgent attention and resolution.
6.2 LAWYER DECEPTIVE BEHAVIOUR I. .EGOTIATIO.S IS A REALITY
Chapter 3 addressed the first research question of whether lawyers engage in
deceptive behaviours during negotiation. Several important points are worth revisiting.
First, current literature and research on legal negotiation as well as research on
attorney behaviour in negotiations affirms that lawyers routinely use potentially
deceptive behaviours in negotiation as well as in other areas of practice.
Second, lawyers appear to have various justifications for such conduct.
These justifications include: 1) the legal ethics codes do not regard such conduct
as unethical or prevent and punish such conduct; 2) the lawyers role-morality
means that such conduct is permissible; 3) the behaviour was a defence posture
as a result of the opposing lawyers deceptive behaviour; and 4) certain
deceptive behaviour in negotiation is neither illegal nor unethical because of
904
either community or conventional negotiation standards of behaviour.
Third, literature on general negotiation appears to show that the use
of such deceptive tactics is seen as acceptable, especially in the highly
905
competitive, distributive bargaining, poker-player ethic of negotiation.
Finally, lawyers and other parties of the legal system, including negotiation
scholars, seem to believe that the use of potentially deceptive tactics in negotiation is
903
904
White, above n 60, 927-928; Lerman, above n 60, 659; Wetlaufer, above n 31, 1219.
905
See Chapter 2 (Review of Literature) for a detailed discussion on this topic.
10
condoned by the very nature of negotiations. Seen primarily as a private
906
practice with little formal regulation or consistent rules regarding conduct,
the standard negotiation dance invariably includes a certain amount of
bluffing, puffing, and innocent misrepresentation which is not only allowed but
expected. Of course, such conduct has ramifications for the legal negotiator
and despite allowances for less than ethical conduct, one must ask whether
the legal profession is content with the way things are or whether the
profession can strive to define how lawyers ought to act during negotiations.
6.3 LEGAL ETHICS CODES ARE I.SUFFICIE.T TO CURTAIL DECEPTIVE

.EGOTIATIO. BEHAVIOURS
Chapter 4 looked at one of the primary ways that the conduct of legal
practitioners is managed and regulated. Generally, the primary ways that the conduct of
legal practitioners is regulated is through rules regarding expectations of professional
and ethical conduct. Particularly in the common-law jurisdictions that are the focus of this
thesis, these rules take the form of professional legal ethics codes which may be defined
as predominantly disciplinary codes (as opposed to aspirational codes) centred around
907
positive morality (as opposed to critical morality) and rooted in legal positivism. These
professional ethics codes are considered the standards which guide a legal practitioners
behaviour and set the minimum moral principles for how lawyers ought to act in their
908
role. Chapter 4 presented an analysis of a comparative study of the legal ethics codes
of a select group of common-law
906
Mize, above n 66,245 (describing negotiation a voluntary process, lack the structure of a public
courtroom, and casual and unstructured which saves money and allows greater flexibility in crafting the
best settlement.).
907
See Chapter 2 (Review of Literature) a discussion on the distinctions between the various types of
codes and morality.
908
Loder, above n 42, 318; Condlin, above n 43, 317.

jurisdictions. This study, which represents an original contribution to the field, is a
critical analysis of the ways in which the legal ethics codes, charged with regulating
attorney behaviour, deal with the issue of potentially deceptive conduct in negotiation.
The findings lead one to the conclusion that legal ethics codes, without more, appear
to be insufficient in curtailing the deceptive behaviours of lawyers. These are
discussed below. In addition, the findings reveal several opportunities for
improvement in the form of policy reforms, which are discussed in detail in Chapter 7.
First, legal ethics codes appear to be adversarial in nature and tone. What I
mean by this is not that they explicitly require lawyers to be adversarial in their
dealings with the court, their colleagues or third parties; however, the language
909
and wording of the rules invite conflict in an adversarial manner. They do this in
two primary ways. One way is that they present various duties owed to the court,
the client, to opposing counsel and to third parties where such duties are either
inconsistent or conflicting. For example, some rules explicitly state that the duty is
910
owed to the court while other rules state the duty is owed only to the client.
Sometimes fulfilling a duty to the court might violate a higher duty to the client, such
as attorney-client privilege. The problem with conflicting duties as stated in the rules
is that there is little-to-no guidance on how to overcome this conflict and which duty
might trump another equally valuable duty. While it is true that lawyers must
constantly balance these various duties, the lack of explicit guidance in instances
909
See, eg, Bordone, above n 96, 4 (...negotiation continues to piggyback on the ethical guidelines used
for litigation, namely, the MRPC [in the United States]).
910
See, eg, Model Rules of Professional Conduct (MRPC)above n 293, Rule 4.1 (which prohibits false
statements of material fact or law); Cf Model Rules of Professional Conduct (MRPC), above n 293, Rule 4.1,
comment (which states that the same lawyer generally has no affirmative duty to inform an opposing party of
relevant facts.); See also Legal Profession (Solicitors) Rule 2007 (Qld), Rule 14 (which indicates a duty to
be frank the court) and Rule 15 (which appears to indicate a similar duty of honesty to opposing counsel).
Neither imposes that same duty of honesty to the client.

where duties conflict or are inconsistent leaves room for potentially inconsistent
and conflicting behaviours by legal practitioners. Coupled with a predominantly
adversarial legal ethics model that stresses zealous representation of the client
above all, it should not come as a surprise that perceptions of lawyers and the
911
legal profession come under attack on a regular basis.
A second way in which the legal ethics codes invite conflict is by not fully
recognising changes happening within the provision of legal services and then adapting
the ethics codes to reflect these changes. Some of these changes include the fact that
modern law firms work primarily in teams (rather than purely as individuals) where
912 913
internal and external negotiations are key, globalisation of legal services, greater
914
democratisation of countries where greater efficiency in dispute resolution is required
915
and the arguable phenomenon of the vanishing trial. The evolution in the distribution
of legal services means that lawyers today perform a variety of functions (i.e. have a
variety of roles) in the legal system, including but not limited to, their role as trial
advocates (litigators or barristers). These roles also include acting as a negotiator (while
not representing a client or representing a client), mediator, arbitrator, panel member, or
judge. A key insight from the comparative study of legal ethics codes is that while the
delivery of legal services has evolved, the legal ethics
911
See Section 6.5 (Studies of the Legal Profession Recommend Change) for a detailed discussion on this
topic.
912
Chart, above n 899, 178-179.
913
See, eg, Terry, above n 548; Noone and Dickson, above n 666, 5.
914
Alain Lempereur, Negotiation and Mediation in France: The Challenge of Skill-Based Learning and
Interdisciplinary Research in Legal Education (1998) 3 Harvard Megotiation Law Review 151, 152-153.
While Lempereur specifically addresses the changes and needs in France and Europe, the changes he
describes could easily apply to any country or legal jurisdiction with regards to changes in the need and
provision of legal services.
915
Galanter, above n 92, 462-463; Cf Macfarlane and Manwaring, above n 465, 253 (discussing this
phenomenon in Ontario, Canada).

codes have not evolved sufficiently to keep pace with such changes,
particularly where the lawyers primary role is that of negotiator.
While some ethics codes, particularly in the United States, Australia, and
Canada, have attempted to delineate between the various roles of a legal
practitioner, there is a lack of consistency in the treatment of these roles across the
common-law jurisdictions studied in this thesis. Where the function of a lawyer as
negotiator is concerned, the legal ethics codes seem to take the position, by silence
in most cases, that negotiation is a skill performed by the legal practitioner, not a
916
unique function or role of the lawyer in a given situation. One notable exception
is the province of Alberta, Canada which specifically has a chapter, statement of
917
principles and ethics rules for lawyers acting as negotiators.
The impact of not formally recognising the unique function of lawyers as
negotiators is that any unethical or misleading conduct that might occur in
negotiations is not formally regulated and is considered permissible either
under generally accepted conventions of negotiation practice or considered
normal under the guise of being a zealous advocate within the adversarial and
918
competitive legal system. In addition, lawyers may rely on other sources for
919
guidance, sometimes resulting in a violation of the legal ethics codes.
916
Note: The term skill in this chapter means a task that someone can do where as the term function in this
chapter means a role that someone plays or is. For example, one can mediate a dispute as an ordinary skill
that is acquired in the course of daily events yet one can be a mediator as a particular role with specialised
skills at a given place and time. See, eg, Mize, above n 66, 247 (...negotiation is a unique environment that
must be treated differently from other forums.); Bordone, above n 96, 3; White, above n 60, 926 (recognising
negotiation as a separate function though his article is most well-known for condoning lying in negotiations).
917
The Law Society of Alberta Code of Professional Conduct, above n 687, Chapter 11 (The Lawyer as
Negotiator). See Chapter 4, Section 4.2 (International Perspectives United States, Canada, Hong Kong) for
more information.
918
White, above n 60, 926 (discussing how the non-public nature of negotiation contributes to the view that
ethical norms can probably be violated with greater confidence that there will be no discovery and
punishment.). See also Mize, above n 66, 247 (specifically addressing the Rules of Professional

While this may not be cause for great concern for some, I argue it is of vital
concern to the extent that the misleading or deceptive negotiation behaviour of a single
lawyer might be perceived as representative of a majority of lawyers, the profession as a
920
whole, or the legal system. If the legal profession accepts the conventional standards
of negotiation behaviour which advocate, condone, and expect some forms of deceptive
and misleading conduct as normal, then the profession must also provide some explicit
guidance on whether lawyers and members of the legal profession are to adhere to
generally accepted negotiation practices or are subject to a higher standard of
921
negotiation behaviour. If the legal profession does not provide explicit guidance in this
most important area, there is a greater chance that lawyers might be seen as nothing
more than hired hands and no longer part of a profession charged with serving the
922
public through the administration of justice.
In summary, the focus of the second research question, discussed in detail in
Chapter 4, was on a comparative study of the legal ethics codes of a select group of
Conduct for Barristers and Solicitors in New Zealand and stating that because the Rules do not clearly
spell out whether strategic posturing is permitted....[t]hey can be read as requiring total honesty, or as
limiting the duty to be honest to certain circumstances, with negotiations possibly being outside the
many occasions....). Mizes assessment applies to each jurisdiction in this study with the exception of
Alberta, Canada, which explicitly spells out the code of conduct for lawyers as negotiators.
919
See, eg, Chester Louis Karras, Give and Take: The Complete Guide to Megotiating Strategies and Tactics
(1974); Chester Louis Karras, The Megotiating Game: How to Get What You Want (1970). Karrass is a
renowned publisher of business negotiation books and explicitly advocates that bluffing and attempting to
mislead the opponent is a regular part of negotiations. Harry C Triandis et al, Culture and Deception in
Business Negotiations: A Multilevel Analysis (2001) 1(1) International Journal of Cross Cultural Management
73, 74-75 (discussing the use of deception in negotiation from a business perspective across individualist and
collectivist cultures); Williams, above n 202 (discussing how some legal negotiators continued to use
adversarial tactics, including deception, because it worked to get them a better deal)..
920
Note: This is my own contention; however the Honesty and Ethics consumer poll conducted yearly by the
Gallup organisation appears to affirm the fact that consumers believe lawyers and the legal profession to be
one of the least honest and ethical professions consistently across a ten-year period. This rating is far below
the same rating given to the medical profession and even judges. This is discussed in more detail further in
this chapter.
921
See, eg, Mize, above n 66, 245 (discussing the nature of deception in negotiation by lawyers and arguing
that lawyers should not be held to a higher standard than ordinary negotiators). But see Rubin, above n 69,
577; Thurman, above n 148, 103; Wetlaufer, above n 31, 1219.
922
See, eg, Kronman, above n 547.

common-law jurisdictions, including Australia, United States, Canada, and Hong
Kong. While the foregoing insights are aimed at the jurisdictions analysed, the
implications of these issues are global in nature. As discussed further in Chapter
7, reforming the legal ethics codes toward greater consistency is one simple, yet
effective way to achieve some harmony within the profession in a highly global,
923
multicultural world of clients and legal jurisdictions.
6.4 LEGAL ETHICS CASES I. QUEE.SLA.D DEMO.STRATE I.EFFECTIVE

E.FORCEME.T OF DECEPTIVE .EGOTIATIO. BEHAVIOURS
Chapter 5 illustrated the legal ethics code in action within a particular
common-law jurisdiction when faced with the issue of lawyer deception in negotiation.
Legal ethics cases arise out of violations of the legal ethics codes. For
example, if a particular rule within the legal ethics codes prohibits misleading or
deceptive conduct, a lawyer may be subject to disciplinary proceedings for violating such
a professional and ethical standard. In Chapter 5, I analysed the legal ethics cases in
924
Queensland where the violation involved deceptive or misleading conduct.
In nearly each of the common-law jurisdictions, legal ethics cases are available to
the public as a means of providing some disclosure to those purchasing legal
services. In Queensland in particular, it is a step towards recognising that legal
services should, in some respects, be subject to greater scrutiny in an effort to
925
promote and provide more flexible and efficient provision of legal services
as well as monitoring lawyer conduct for the protection of the public.
923
See Chapter 7 (Implications for Law Reform) for more information.
924
The focus of the analysis was only cases alleging deceptive or misleading conduct with a focus on any
such cases where the conduct occurred in the course of a negotiation. Therefore, the discussion and
summary analysis in this section deals only with these specific cases.
925
Trade Practices Commission, Study of the professions: Summary of Final Report - Legal (1994).

The findings from an analysis of the ethics violation cases of this jurisdiction
indicate that there is ineffective enforcement of the ethics code with regards to
deceptive negotiation behaviours by legal practitioners. In addition, even where there
is formal enforcement of such conduct, prosecution is minor and not significant
enough to serve as a deterrent to similar conduct in the future. The analysis of the
legal ethics cases in Queensland, Australia shows several opportunities for
improving the enforcement mechanism for more effective regulation, especially with
regards to misleading or deceptive behaviour in negotiation. These opportunities and
insights are discussed below while potential policy reform proposals are outlined in
Chapter 7. The empirical study also provides a framework from which to conduct
similar studies in other jurisdictions to ascertain consistent or comparable findings.
First, the ethics cases available show virtually no prosecution for misleading or
deceptive conduct in negotiations. It is possible that complaints were reported and simply
settled or dismissed. In terms of official enquiries and cases brought against legal
practitioners for misleading or deceptive conduct, only one formally prosecuted case was
found in Queensland. This may be for several reasons. As stated earlier, original
complaints may have been dismissed during the standard intake process for a variety of
reasons including lack of severity of the offending conduct and a decision that formal
prosecution would not serve the public interest. A second reason for lack of prosecution is
that any such reported cases may have been privately settled between the complainant
926
and the legal practitioner. Finally, a more probable reason is that because negotiations
are generally private and not formally regulated, potential claimants may not file a formal
complaint, either because they have achieved a
926
See Chapter 5 (The Success of Legal Ethics Codes in Controlling Lawyers Deceptive
Behaviour) for more information.

favourable result in line with their own interests in the negotiations or because
they are not aware that they can file a complaint against their lawyer in this
context. Theoretically, because some deceptive or misleading conduct is
generally accepted in negotiations, clients may not consider such behaviour
as unethical and may even expect it of their attorneys, perhaps as long as
927
clients achieve their own objectives and their interests are maximised.
Second, ethics violation cases show very little in terms of the context in which
the violation occurred and whether different ethical principles were applied
accordingly. By this I mean that, in most ethics violation cases, there is very little
information to determine whether, for example, the lawyer was charged with
misleading or deceptive conduct while in court, in mediation, in negotiation or
otherwise. In the Queensland jurisdiction, the analysis of the legal ethics violation
cases involving deceptive or misleading conduct revealed only one case that
involved negotiation. In addition, there is little information to suggest whether
different ethical standards were considered depending on the context of the situation.
In most cases, if the attorney was charged with misleading or deceptive conduct, this
was a sufficiently egregious violation of the professional ethics codes to sanction the
attorney or strike him/her off the role, with or without additional sanctions such as
costs and further continuing legal education (CLE) course requirements.
Finally, the ethics violation cases where the charge was misleading or deceptive
conduct show a marked tendency towards imposing punitive judgments as opposed to
remedial punishment or use of restorative justice principles. In most cases,
927
Note: This theoretical assumption would be a good topic of future empirical research on
the extent to which consumers will accept or not accept potentially deceptive conduct on the
part of their lawyer in relation to achieving a favourable result in the negotiations.

whether the charge was minor or major was irrelevant. Legal practitioners were still
sanctioned through heavy fines, public reprimands, or being struck off the roll of
practitioners. One possible reason for this is that there does not appear to be a
gradation of the severity of misleading or deceptive conduct on which to objectively
determine the severity of the offending conduct or an objective analysis of the
severity of the charge in relation to other more serious violations of the ethics rules.
In most cases, if a sufficient argument can be made that the lawyers conduct would
negatively affect the public interest or tarnish the reputation of the profession, the
lawyer was considered guilty of the charges. It appears that not only are ethics
violations cases frequently dismissed but that when there are official charges filed
and the legal practitioner is formally prosecuted, subjective reasoning and severe
punitive judgments take precedence over fully understanding the context in which the
violation occurred, the intent or motive of the lawyer in possibly violating the
professional ethics code, and a fully reasoned opinion that is based on more
intellectual rigor and analysis of precedent. As a result, a number of legal scholars
criticize legal ethics cases as failing to provide uniform guidance and succeeding only
in showing conflicting judgments which do not help lawyers in achieving sound ethics
928
as part of the public profession.
In summary, a study of the ethics violation cases in the Queensland
jurisdiction seems to indicate that if allegations involve misleading or deceptive
behaviour, negotiation does not appear to be a focus for prosecution while the
928
See, eg, Haller, above n 587, 152; Linda Haller, Smoke and Mirrors: When Professional
Discipline May Cause Harm (2005) 8(1) Legal Ethics 70; Levin, above n 587, 187-210; Eileen
Libby, When the Truth Can Wait: There are times when a lawyer may engage in a bit of
deception but not many (2008) 94 American Bar Association Journal 26, 27-28 (discussing
some of the inconsistencies in ethics violation cases in the United States).

disciplinary measures seem to be more punitive than reformative. The public
disclosure of such cases seems to only taint the reputation of the profession. As a
result, what lawyers and the legal profession face is a negative public perception
consistently confirmed through independently-commissioned consumer and
929
professional industry studies studies which call for a change.
6.5 STUDIES OF THE LEGAL PROFESSIO. RECOMME.D CHA.GE
The review of literature in Chapter 2 supports a conclusion that, despite the
fact that practitioners, scholars, and various stakeholders acknowledge the
issue of deception in negotiation, all seem powerless to do something about
it. As a result, thus far, there has been no measurable action taken to address
this issue. While it is plausible that a self-regulated profession can continue to
disregard the elephant in the room, hoping it will go away or is a figment of
someones imagination, consumer and industry studies of the legal profession
in various common-law jurisdictions, especially in the United States, provide
stark reminders of what appears to be the publics consistent dissatisfaction
with the legal profession. This feedback from the consumers of legal services
930
should prove reason enough to finally and effectively address this issue.
929
See generally Chapter 6, section 6.5 for a full discussion of the consumer studies reflecting the
perception of the legal system and lawyers. These studies focus mainly on Australia and the United
States as data was more readily available. See also Canadian Bar Association Futures Report, Crystal
Clear: Mew Perspectives for the Canadian Bar Association (August 2005)
<http://www.cba.org/CBA/futures/pdf/crystalclear.pdf> at 9 August 2010 (discussing similar issues from
the perspective on the Canadian Bar Association and noting that [p]erhaps the biggest threat on the
demand side is the current poor image of lawyers held by the public. (Section 2.4)).
930
See, eg, Honorable Mark D Fox and Michael L Fox, Its No Joking Matter: Our Profession Requires
Greater Civility and Respect (2009) Mew York State Bar Association Journal 11, 14 (putting into context the
need to maintain the high standards of the profession of law as the means to safeguard society and the
base upon which our democratic government...finds its foundations.) The more important point by Fox and
Fox is a reminder to practitioners that the legal profession is meant to stand as one of the bulwarks of an
ordered society of laws and the guardians of law and justice such that if the legal profession is seen to fail
(in Fox and Foxs example of being uncivil), then that ordered

A historical perspective of the views of consumers of legal services is
important in establishing the need for change. This is further reinforced by
studies of the legal profession by various industry organisations. The consumer
perspective is presented first, beginning with one of the most noteworthy
consumer studies on lawyers and the legal profession from the United States.
This is followed by studies of the legal profession by industry organisation.
One of the first relevant consumer studies on lawyers and the legal profession is
the Gallup Organisations Honesty and Ethics poll in the United States. In 1976, the
Gallup Organisation of the United States conducted one of the earliest consumer studies
of honesty and ethics across various industries and professions, including lawyers and
931
the legal profession. Since 1976, the Gallup poll on honesty and ethics has been
conducted in the United States on a yearly basis. What is astonishing is the consistency
with which lawyers and the legal profession are viewed by the U.S. public on the
932
honesty and ethics ratings since 1992. Between 1992 and 2006 inclusive, only
between 13% and 18% of respondents rated the honesty and ethical standards of
933
lawyers as either high or very high, with the average rating across these years
being only 15.56% of the surveyed public who said that the honesty and ethics
standards of lawyers was either high or very high. In contrast, between
society would be in jeopardy and regress, even if the failure is a perception of failure as
discussed in the context of these consumer studies.
931
See generally The Gallup Organisation at www.gallup.com. The Gallup Organisation is based in the United
States and has offices in Australia. To date, the Honesty and Ethics poll has been conducted only in the
United States. As such, the discussion in this section about the results of the Gallups annual Honesty and
Ethics poll applies only to the United States. The results may be applicable to Australia and other jurisdictions
given their mutual association to the same common law jurisdiction practices.
932
Note: Data is publically available online for the period of 1992-2008. See generally
<http://www.usatoday.com/news/polls/tables/live/2006-12-11-ethics.htm> at 9 August 2010. As such, these
results are the focus of this discussion. Data is not publically available online for the periods 1976-1992 and
has been requested by Gallup.
933
See generally <http://www.usatoday.com/news/polls/tables/live/2006-12-11-ethics.htm> at 9 August
2010.

1992 and 2006 inclusive, the public rated another major profession, medical doctors,
as between 47% and 69% in terms of having high or very high honesty and ethical
934
standards, with the average across these years being 55.69%. As compared with
other professions, lawyers were not considered honest or ethical.
In addition, when asked about the respondents overall view of a
particular industry, the trend analysis from August 2001 to August 2008 shows a
consistently negative view towards the legal industry with respondents
predominantly having a neutral or very/somewhat negative view of the legal
935
industry. Across this same time period, each year yielded a negative net
936
positive result in terms of the publics overall view of the legal industry.
A second important consumer study of the legal profession took place in
1993 in the United States. In 1993, the American Bar Association commissioned
a comprehensive survey to determine the U.S. publics attitude towards lawyers,
the American legal system and the ABA itself. The survey was a nationwide
telephone survey of 1,202 adults who were considered representative of the
937
public combined with various focus groups to elicit comments. The
characteristics of the representative sample in the study included the following: 1)
about two-thirds of those surveyed had retained a lawyer in the prior 10 years; 2)
three out of four of those surveyed said they personally knew a lawyer; 3) half of
those surveyed said they dealt with a lawyer on a semi-regular basis; and 4) one-
938
fourth of those surveyed had never used a lawyer at all.
934
Ibid.
935
Ibid.
936
Ibid.
937
Hengstler, above n 13, 60-61.
938
Hengstler, above n 13, 61.

While lawyers generally rated highly and positively with regards to
competency, knowledge, and zealous representation, this study also suggest[s]
a disturbing pattern that the more a person knows about the legal profession
and the more he or she is in direct personal contact with lawyers, the lower an
939
individuals opinion of them. This seems to suggest that in 1993, while the
public feels positively about what lawyers do, they are not happy with how
lawyers do what they do, especially where those tasks impact on their clients.
In essence, lawyers are viewed as competent on the hard skills (knowledge of
the law, competent in the courtroom, zealous representation for their clients,
etc.) while lacking on soft skills such as being compassionate, caring, and
having high ethical standards. These soft skills are what the public seems to
expect of professions whom they rate highly on nearly every factor.
In this same survey, the issue of legal ethics was quite problematic as only 22%
of those surveyed would classify lawyers as honest and ethical and nearly half of those
surveyed (48%) said that as many as 3 in 10 lawyers lack the ethical standards
940
necessary to serve the public. The survey did not focus exclusively on any one aspect
of a lawyers role such as whether they were acting as an advocate, negotiating,
mediating or representing the client in a trial. However, given that negotiation is such an
important and consistent part of what a lawyer does on a daily basis, one could
extrapolate that these findings could apply to deception in negotiation as honesty infers
that there is no deception, regardless of the task at hand.
939
940
Ibid. This 48% for lawyers was significantly higher than the ratings for accountants (22%), doctors (28%)
and bankers (30%). See also Rhode, above n 151, 3-7.

While Hengstler argues that these ratings are likely the result of the
publics misunderstanding of the ethics of the legal profession, it nevertheless
points to a glaring discrepancy between how the public expects lawyers to act,
how lawyers themselves expect to act within the bounds of professional duty,
the publics understanding of the nature of legal ethics, and the professions
lack of effort in reducing these glaring discrepancies of perception between the
law, legal ethics, and the public which it is meant to serve.
For example, in this same 1993 ABA survey, when consumers were asked
what they considered as the most important roles for lawyers and their most
important priorities as a profession, only 29% cited an advocate for their clients
interests as critical while a majority (52%) regarded a protector of basic rights
as the top purpose of a lawyer and 37% selected a prosecutor of wrong-doers
941
as an important role for lawyers. This 1993 ABA survey affirms that the legal
professions perceptions of the primary role of lawyers in the United States (i.e.,
as zealous advocates for their clients within the bounds of the law) is markedly
different and out of step with what consumers of legal services customers expect
and are now demanding with ever-increasing urgency.
A third noteworthy consumer study of the profession is the April 2002
American Bar Association Section of Litigations commissioned study on the United
States public perception of lawyers. The purpose of the 2002 ABA study is similar
to that of the 1993 ABA study discussed earlier in this section. However, unlike the
1993 ABA study, the 2002 ABA study consisted of three primary stages: 1) a
941
Hengstler, above n 13, 62. In addition to 29% who cited an advocate for their clients
interests as critical, 26% selected a settler of disputes, 20% selected a defender of the
underdog, and 13% selected leader in the community.

national survey by telephone of 450 representative U.S. households in April 2001; 2)
ten focus group discussions in five U.S. markets in summer 2001; and 3) a national
942
survey by telephone of 300 representative U.S. households in January 2002.
The results of the national telephone surveys found that while the American
public thinks lawyers are competent, knowledgeable about the law, and provide good
943
practical service to their clients, the American public considers American lawyers to be
944
greedy, manipulative, and corrupt. The study further found lawyers to be deceptive
and misleading. Specifically, respondents stated that lawyers misrepresent their
qualifications, overpromise, are not upfront about their fees and charge too much for their
945
services, take too long to resolve matters, and fail to return client phone calls. As a
result, it is not surprising that one of the other key findings was the publics belief or
perception that the state bar associations of the individual states do a poor job of
946
regulating and policing lawyer conduct in the interests of the public.
With regards to manipulative behaviour, over 73% of respondents believe
lawyers not only manipulate the system but they also manipulate the truth to win at
947
all costs. Corruption was another issue for the public. The study reported that
respondents, through personal experience, believe that lawyers use unethical and
942
American Bar Association, Public Perception of Lawyers: Consumer Research Findings, above n 13, 2-
4.
943
American Bar Association, Public Perception of Lawyers: Consumer Research Findings, above n 13, 4,
18. Interestingly enough, over 59% of those surveyed agreed that lawyers were knowledgeable and
interested in serving their clients. In addition, many blamed the system, not lawyers, as the source of the
problem.
944
American Bar Association, Public Perception of Lawyers: Consumer Research Findings, above n
13, 4.
945
Ibid.
946
Ibid.
947
American Bar Association, Public Perception of Lawyers: Consumer Research Findings, above n 13, 7-
8.

948
sometimes illegal tactics. As lawyers are constantly negotiating on behalf
of their clients, the use of deception in negotiation would be included in the
949
use of such unethical or illegal tactics. According to results of the focus
groups conducted as part of this 2002 ABA study, illegal or unethical tactics
included staging accidents, offering to bribe prosecutors or judges, and
sending clients to doctors for injuries they do not have.
Overall, while lawyers are seen as providing a valuable and much-
needed service, especially in times of crisis, the U.S. public perception of
lawyers and the legal profession is consistently low, even where they have
had a good experience with lawyers. This appears to be a direct reflection not
of what lawyers do for clients but of how they perform their jobs and how their
methods, tactics and interactions with clients are perceived by the public,
regardless of whether the end result for the client is positive.
A final consumer study of the legal profession worth noting is the latest 2008
Gallup annual Honesty and Ethics poll, where lawyers were considered one of least
950
well-rated professions for honesty and ethics, second only to labour union leaders.
Only 18% of respondents rated lawyers honesty and ethics as very high/high while 45%
rated lawyers ethics and honesty as average and 37% rated lawyers ethics and
951
honesty as low/very low. Once again, these results with respect to lawyers and the
legal field are consistent with prior years results in the Gallup Honesty and Ethics annual
poll, demonstrating that lawyers and the legal field are rated less favourably
948
American Bar Association, Public Perception of Lawyers: Consumer Research Findings, above n 13, 9.
949
See Lewicki and Robinson, above n 536, 665-682; Rivers, above n 77.
950
See generally Lydia Saad, Murses Shine, Bankers Slump in Ethics Ratings (2008)
<http://www.gallup.com/poll/112264/Nurses-Shine-While-Bankers-Slump-Ethics-Ratings.aspx> at 9 August
2010.
951
Ibid.

when compared against results for medical doctors and sometimes
952
worse than business executives.
With regards to consumer views of the legal profession, these statistics
seem generally consistent with the annual Gallup Organisation Honesty and
Ethics consumer polls and ABA consumer studies discussed above. Next, the
focus is on the studies of the legal profession and its members conducted by
legal and industry organisations. These studies reflect the views of current
and future lawyers about the legal profession.
In 1994, the Trade Practices Commission of Australia undertook a
similar study of the legal profession in Australia though the focus was primarily
the governments perspective of the legal profession rather than the consumer
perspective. However, since government is often a purchaser of legal services,
government is also a consumer.
In March 1994, the Trade Practices Commission of Australia (The Commission)
953
published its final report on a study of the legal profession. Overall, the Commission
concluded that the Australian legal profession is heavily over-regulated and in urgent
954
need of comprehensive reform because these regulations impose substantial
restrictions on the commercial conduct of lawyers and on the extent to which lawyers
955
are free to compete with each other for business. The Commission looked at
regulations affecting the structure of the legal services market as well as the regulations
affecting and controlling the conduct of legal
952
Saad, above n 950. See generally <http://www.usatoday.com/news/polls/tables/live/2006-12-11-
ethics.htm> at 9 August 2010.
953
See generally Study of the Professions Legal: Summary of Final Report, above n 925; Trade
Practices Commission, Study of the Professions Legal profession: Issues Paper (1992); See also
Trade Practices Commission, Study of the Professions Legal: Draft Report (1993).
954
Study of the Professions Legal: Summary of Final Report, above n 925, 3.
955
Ibid.

956
practitioners. The Commissions findings and recommendations on the regulation of
the conduct of legal practitioners are of particular importance to this thesis.
With regards to the regulation of lawyer conduct, the Commission recommended
that the Trade Practices Act 1974 (the TPA) should cover the conduct of legal
professionals, the market conduct of the legal profession as a whole, and extend even to
957
the rule making and other activities of its professional associations.
The legal profession, at the time of the Commissions report, is said to be
exempt from the provisions of the Act because the profession is considered to
be self-regulated and bound by a myriad of professional rules, such as court
rules and ethics codes; however, others have argued that the TPA does apply
to the legal profession as well because the provision of legal services is a
trade like any other profession and serves the public, who is the intended
958
beneficiary of the protections of the Trade Practices Act 1974. By 2010,
this latter view was reinforced by the Australian Competition and Consumer
Commission, who published a formal document on the application and impact
of the Trade Practices Act to all professions, including the legal profession.
By recommending that the Trade Practices Act 1974 apply to the legal
profession, the Commission is making some implicit statements, namely that the conduct
of legal professionals in general is deceptive and misleading, especially since
956
Study of the Professions Legal: Summary of Final Report, above n 925, 4-6.
957
Ibid.
958
See, eg, Pengilley, above n 576, 113-129 (discussing the effects of Trade Practices Act 1974 s 52 on
common negotiating techniques of legal professionals, which includes deceptive and misleading conduct). See
also Australian Competition and Consumer Commission, Professions and the Trade Practices Act (2010) 19-
20 <http://www.accc.gov.a u/content/item.p html?itemld=926503&nodeld =71b6c165a bc78f1a60fOa
1643c9367&fn=Professions%20and%20the%20TPA.pdf> at 31 July 2010 (specifically reinforcing the
obligation of the professions to refrain from deceptive and misleading conduct when dealing with clients). This
latter document is an updated document highlighting and reinforcing the application of the TPA on all
professions in Australia, including the legal profession.

one of the key purposes of the Act is to prevent incentives to mislead
consumers of products and services. In addition, the Commissions report also
seems to allude to the fact that current legal ethics rules and rules governing
professional and ethical standards and disciplinary procedures are not
effective in curtailing misleading behaviour even as the rules on their face
959
explicitly prohibit deceptive or misleading conduct by legal professionals.
If the Trade Practices Act 1974 does apply to the legal profession, it would
actually put the legal profession on the same footing as any other business or
occupation where a certain amount of deceptive or misleading conduct is
960
permissible. While such conduct might be reduced under the Trade Practices
Act 1974, the conduct would not be entirely eliminated because under the current
legal ethics rules, any form of deceptive or misleading conduct, including the use of
such conduct in negotiations is strictly prohibited and subjects the legal
professional to disciplinary proceedings for ethics violation.
As discussed in earlier chapters, the adoption of the Trade Practices Act
1974 as applying to legal professions would likely put it at odds with the legal ethics
rules. These inconsistencies will potentially cause inconsistent lawyer behaviour in
regards to negotiations and needs to be addressed. One way to address this issue
is through strategic policy reforms as discussed further in Chapter 7.
The Commission also recommended, among other things, greater effectiveness
and public accountability of the legal profession, an increase in the type of matters that
could be the subject of a formal complaint against a legal professional, and lay
959
See Chapter 4 for a full discussion of the specific legal ethics codes analysed in this thesis.
960
Note: I am making a distinction between a profession and any other occupation. For further
discussion see Lakhani, above n 268, 61 (discussion lawyers as part of a profession versus any other
occupation and therefore why the profession expects a higher standard of behaviour).

representation on complaints and disciplinary tribunals to be at least
961
equal to the number of lawyer representatives on the same panels.
Regardless of any inconsistencies between what the Commission
recommends and what the profession deems appropriate, it is clear that
professional reforms are imperative to not only allow for sustainability of the legal
profession in a global market but also to ensure greater public accountability and
informed choice. A significant part of this reform mandate is targeted towards
how legal professionals carry out the business of justice on a daily business a
business that has constant and daily negotiations as a foundation.
A second study of the legal profession worth noting is a recent 2008
962
commissioned study in Australia. In November 2008, The Australian reported on a
national, large scale commissioned study of law students and the legal profession
conducted by Professor Ian Hickie at the Sydney University Brain and Mind
963
Institute.
The study involved a survey of 2,413 lawyers consisting of 738 students
961
Note: Some of these have been addressed in Queensland through the implementation of the Legal
Services Commission through the Legal Profession Act 2004 (Qld). However, at the time of writing, lay
representation on ethics violation complaints and disciplinary bodies was not equal to lawyer representation
and lay representatives felt overwhelmed or overlooked in terms of their role and influence. See e.g., Haller,
above n 587, 1; Haller and Green, above n 701, 145 and 157 (suggesting that lay member and practitioner
representation and input into disciplinary panels and decisions has actually decreased since the initial study
conducted in 2001). See Chapter 5 (The Success of Professional Ethics Codes in Controlling Lawyers
Deceptive Behaviour) for more information on this topic.
962
Note: The full report was released in January/February 2009. See N J Kelk, G M Luscombe, S D
Medlow and I B Hickie, Courting the blues: Attitudes towards depression in Australian law students and
legal practitioners, BMRI Monograph 2009-1 (2009) <http://www.bmri.org.au/research/mental-health-
clinical-translational-programs/index.php> at 9 August 2010; Ian Hickie, The mental health of Australian
lawyers: A challenge for the law schools and the profession 18-44 (18 September 2008)
<http://www.bmri.org.au/research/mental-health-clinical-translational-programs/index.php>
at 9 August 2010.; Beaton Consulting, Annual Professions Study 2007 (2007).
963
See also Nicola Berkovic, Research finds depression very high in legal profession (2008) 2 The
Australian <http://www.theaustralian.news.com.au/story/0,25197,24367557-17044,00.html> at 9 August
2010.
964
from 13 law schools nationally, 924 solicitors, and 751 barristers. Professor
Hickie cited the competitive and individualistic nature of the profession versus a
more collegiate approach as a factor in the findings which confirmed high rates of
physical and mental ailments within the legal profession.
These findings are consistent with studies among lawyers in the United States.
The views among lawyers found that one of the biggest concerns was the standing of the
965
profession in the eyes of both lawyers and the public. Lawyers in the United States
further agreed that improving the standing and perception of the profession was the
ABAs top priority. Lawyers also reported a decline in ethical values and the loss of the
966
professional soul as a result of the current culture of the profession being more profit-
967
oriented due to increased commercialisation and competition. In addition, lawyers
cited a decreased emphasis on public service, instability in lawyer-client relationships
because of competition and market-driven practices, increased billable-hour
requirements, and ethical rules which are not demanding and under-enforced as other
968
reasons for a feeling of general malaise about the profession.
This general malaise about the profession and law practice has resulted in a profession
969
marred by high rates of thoughts of suicide, severe depression, alcohol and drug
964
The University of New South Wales, Depression a disabling problem in legal profession study
(2009) <http://www.unsw.edu.au/news/pad/articles/2008/sep/Jepson_release.html> at 9
August 2010. See also Kelk et al, above n 962.
965
966
Rhode, above n 151, 8.
967
Rhode, above n 151, 9.
968
Rhode, above n 151, 9-12.
969
Michael J Sweeney, The devastation of depression: Lawyers are at great risk Its an impairment to take
seriously (2009) <http://www.abanet.org/barserv/22-6dev.html> at 9 August 2010 (discussing a 1991 North
Carolina Bar survey that found that 12 percent of members said they contemplated suicide at least once each
month); E Mounteer, Depression Among Lawyers (2004) 33 Colorado Lawyer 35 ((most lawyers who suffer
from depression also suffer from suicidal thoughts); Richard G Uday, That Frayed Hope (2003) Utah State
Bar Journal (citing Meyer J Cohen, Bumps in the Road, GPSOLO, July/Aug. 2001, at 20) (citing suicide as the
leading cause of premature death by lawyers); Lynn Johnson, Stress Management (2003) Utah State Bar
Journal. (discussing the 1992 Annual Report of

addiction, and other ailments that affect the physical and mental health of the
970
legal professional at rates nearly three times higher than the general public.
As discussed in earlier chapters, the overly competitive nature at the heart of an
adversarial approach in the legal system and in negotiations fosters deceptive and
misleading conduct because the core of competitive negotiations is seen as a game
where winning takes precedence over anything else, including justice. For example, the
use of terms such as plaintiff and defendant or state versus defendant creates the
perception of competition and adversarial challenges. As such, these findings should
not be surprising but serve as an immediate call to action.
In summary, the primary activity of lawyers on a daily basis is negotiation,
whether on behalf of a client or in serving a clients interests when engaged with
opposing counsel or the courts. Therefore, how lawyers carry out this function is
what clients see the most. What clients see and experience most often is likely
reflected in their perception of lawyers and the legal profession. As such, a change
in how lawyers negotiate (i.e., through the use of specific strategies and tactics) is
one strategic and effective way to have a positive impact on the public perception of
971
lawyers and the legal system. Unfortunately, to date, a number of proposed
solutions have failed to create a sense of urgency in addressing this issue.
the National Institute of Occupational Safety and Health which found that male lawyers are twice as
likely to commit suicide as compared with the general population); Hickie, above n 962, 18-44.
970
Rhode, above n 151, 8-9 (citing Nancy McCarthy, Pessimism for the Future, (1994) California Bar Journal
1; Mary Ann Glendon, A Mation under Lawyers (1994) 85-87. See also Berkovic, above n 963, 2. The findings
were reported by a study conducted by Professor Ian Hickie at the Sydney University Brain and Mind Institute.
Professor Hickie cited the competitive and individualistic nature of the profession versus a more collegiate
approach as a factor in the findings.
971
See Chapter 7 (Implications for Law Reform) for a detailed discussion of the strategic policy reform
proposals recommended in this thesis.

6.6 FAILURE OF PRIOR PROPOSED SOLUTIO.S A.D A CALL TO ACTIO.
The purpose of this section is to discuss the three primary ways in which
practitioners and academics have attempted to resolve the issue of deception
in negotiation and provide eight core reasons why these solutions have not
been adopted or implemented.
Both practitioners and academics have recognised since the 1980s that there
is an issue with the use of potentially deceptive behaviours by lawyers in negotiation.
The prevalence of literature and debate on this issue, dating as far back as the early
972
1960s, is impossible to ignore. In addition, practitioners and scholars have
proposed a myriad of solutions aimed at addressing the issue of lawyer deception in
negotiations. Yet it seems that, based on the review of literature in Chapter 2, none
of these proposed solutions have been accepted or adopted. This section looks at
prior proposed solutions, the possible reasons why they were not adopted, and why
there is now an urgent call to action to address this foundational issue within the
legal profession. This section begins with some of the proposed solutions to the
issue of lawyers deceptive tactics in negotiation.
One of the most common solutions has been to adopt an entirely new legal
ethics model as proposed by scholars such as Menkel-Meadow, Simon, Thurman,
Fletcher, and Parker and Evans. This comes on the heels of years of commentary and
973
arguments that the current legal ethics model is too adversarial and that legal ethics
972
Carr, above n 532, 143-153 (But from time to time every businessman, like every poker player, is offered
a choice between certain loss and bluffing within the legal rules of the game. If he is not resigned to losing, if
he wants to rise in his company and industry, then in such a crisis he will bluff-and bluff hard.). While the
focus of this article appears to be the business world, lawyers are business people as well and law firms are
businesses with a very strong profit motive.
973
See, eg, Rhode, above n 151, 8-12; David Luban (ed.) The Ethics of Lawyers (1994); Menkel-
Meadow, above n 19, 761; DAmato and Eberle, above n 174, 764-770 (referring to this dominant model
as the autonomy model of legal ethics).

today should be more socially responsible in a way that is attuned to and reflects
974
public values and curbs excessive adversarial processes. The core argument
seems to be that the adversarial nature of the current legal ethics model is flawed
and causes lawyers to be too competitive and thus resort to one of the most common
975
competitive negotiating tactics deception in order to win at all costs.
As introduced earlier, W H Simon is among those who recommend adopting a
new legal ethics model. Simon proposed adopting a more contextual or situation
ethics model. According to Simon, the dominant view of legal ethics (i.e., the
adversarial model) seems to encourage injustice, even if it does so unconsciously or
976
subconsciously. Simons proposal is to adopt a more contextual ethic whose basic
maxim [must be] that the lawyer should take such actions as, considering the
977
relevant circumstances of the particular case, seem likely to promote justice.
Under Simons approach, a lawyers personal ethical views of what is right and wrong
would take greater precedence over the prevailing legal ethics requirements and
978 979
obligations. Thurman and Fletcher proposed similar approaches and explored
the implications of a contextual or situational ethics model.
974
Rhode, above n 151, 8-12 (...professional conduct implicates public values, and they [public values] should
figure more prominently in the formulation and enforcement of professional standards.). See also Simon,
above n 191, 2 ("No social role encourages such ambitious moral aspirations as the lawyer's, and no social role
so consistently disappoints the aspirations it encourages.").
975
Deborah L Rhode, Symposium Introduction: In Pursuit of Justice (1999) 51(4) Stanford Law Review
867 (...bars prevailing ethics norms are fundamentally flawed and that their inadequacies carry a
substantial cost for both the profession and the public.).
976
Simon, above n 191, 109; See also M B E Smith, The Practice of Justice: A Theory of Lawyers' Ethics.
(Review Essay / Can a Lawyer Be Happy?) (2000) 2 <http://www.articlearchives.com/law-legal-
system/legal-services-lawyers/1051660-1.html> at 9 August 2010.
977
Simon, above n 191, 9; Mary Jo Eyster, Clinical Teaching, Ethical Negotiation, and Moral Judgment
(1996) 75 Mebraska Law Review 752, 782-790 (agreeing with Simon). Cf Smith, above n
976. This article is also published in Criminal Justice Ethics publication. Smith criticizes
Simons approach and does not consider it practical or viable for practitioners.
978
Thurman, above n 148, 103.
979
Fletcher, above n 192, 35.

Another proponent of adopting a new legal ethics model is Parker and
Evans. Parker and Evans as well as Gilligan, among others, recommend a
980
move towards an ethics of care model where lawyers would adopt a more
relational lawyering approach where personal values and context are key
factors in the lawyers approach to lawyer-client relations.
In addition, DAmato and Eberle propose adopting a deontological model of legal
ethics as opposed to the current model that appears to be based on utilitarianism
981
principles. Under the deontological model, DAmato and Eberle argue that four primary
982
rules would govern ethical decision-making by lawyers. These sample rules, in effect,
attempt to put a hierarchy of priority where duties to the client, court, and justice system
conflict. They seem to set up rules or guidelines for when one duty might trump another.
Presumably, the rule imposing a moral obligation to avoid fraud and perjury would
encompass the use of deception in negotiations. Notwithstanding the primary criticism
that this model might compromise attorney-client confidentiality to some degree as well
as the issue of determining how many other rules might be required, DAmato and
983
Eberle argue that these rules are currently implied and reflected in the Model Rules
and only puts the client on notice that confidentiality is not the only or primary value
984
within the legal system. Therefore, client confidentiality cannot be used to bypass
standard norms of expected behaviour, especially when it comes to a conflict between
disclosure and harm to another party.
980
Parker and Evans, above n 156, 23, 31; Maughan and Webb, above n 188, 36; Gilligan, above n 189.
981
DAmato and Eberle, above n 174, 772-774.
982
DAmato and Eberle, above n 174, 772-774; See also Chapter 2 (Review of Literature) for more
information on this topic.
983
Model Rules of Professional Conduct (1983), Rule 1.6(b) (1) ((b) A lawyer may reveal information relating
to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent
reasonably certain death or substantial bodily harm).
984
DAmato and Eberle, above n 174, 778.

A second proposed solution to the issue of lawyer deception in
negotiation is to impose candour in negotiations either through additional rules of
legal ethics or stricter enforcement mechanisms. Both Judge Rubin and
supporters such as Thurman argue that the legal ethics rules represent only a
minimal standard of behaviour and that lawyers are obligated to always be
985
scrupulously honest in all their dealings, including negotiations. Thurman
contends that lawyers should be expected to adhere to a higher level of
986
truthfulness than the minimum standard imposed by legal ethics codes.
For example, Menkel-Meadow proposes requiring honesty in negotiations by
987
imposing a golden rule of candour. According to Menkel-Meadow, this golden rule
of candour appears to be a less rigid form of the current paternalistic standard in
favour of a more self-interested standard that consists of two enquiries of ethical
decision-making: 1) whether the lawyer as the client rather than the lawyer as a
professional would want to know the truth in a given situation (thus asking the lawyer
988
to put himself/herself in the shoes of the client in regards to truth-telling); and 2)
whether [t]he lawyer should be as truthful to the client as she expects the client to be
989
with her. Menkel-Meadows sees this second enquiry of the Golden Rule of
Candour as embodying the full potential of reciprocal honesty as imagined by the rule,
thus making the lawyers moral obligation to the client very clear and less subject to
990
ambiguity and concern regarding ethical decision-making.
985
Rubin, above n 69, 577
986
Thurman, above n 148, 103. See also Loder, above n 533, 87.
987
Menkel-Meadow, above n 19, 761.
988
Menkel-Meadow, above n 19, 770.
989
Menkel-Meadow, above n 19, 780 (italics in the original).
990
Ibid.

One of the more obvious issues with Menkel-Meadows suggestion is that the
clients moral code may be in conflict not only with the legal professions minimal ethical
standards but may also conflict with a lawyers own stricter standard of ethics. In
addition, how would such a golden rule of candour be enforced or measured since
adopting it would seem to place the lawyer once again in a contextual mode of ethical
decision-making with the added variable of taking into account the clients or his/her
communitys ethical standards? Should one be compromised for another?
Loder offers yet another option for imposing by reframing the lawyers view of
their work and the value of their roles. According to Loder, the legal profession would
be well-served to question the apparent majority opinion that negotiation is inherently
991
deceptive. Loder argues that instead of accepting that negotiations are inherently
992
deceptive, lawyers should view negotiation as a truth-seeking process.
She, therefore, condones regulations that encourage affirmative disclosures during
the process as well as affirmatively discouraging deception by statements and/or
993
conduct. In effect, it seems Loder would prefer to see the current rules enhanced to
include explicit prohibitions on deceptive conduct as well as rules requiring lawyers to
affirmatively disclose certain information to their counter-parts in the interests of
promoting honesty and truth-seeking within a more collaborative negotiations process.
Finally, a third solution offered to address the issue of lawyer deception in
negotiation is to simply do nothing about it. This view appears to stem from three
primary observations. First, as suggested by White, deception in negotiation is a sine
991
Loder, above n 533, 102.
992
993
Loder, above n 533, 100. Reed does not go into details on how these rules should be formulated or
enforced.

994
qua non of lawyers and the legal profession, regardless of what the ethical rules
say. White has argued that regulating deception by lawyers is impossible because
995
deception is the essence of negotiation as a process. Second, White argues that
regulating deception in negotiation by lawyers would be difficult because of the
paradoxical nature of the negotiator who must be fair and truthful as well as
deceptive. Third, there is a very low probability of punishment for deception in
996
negotiation, thus making any mandatory rules against deception subject to failure.
According to White, imposing rules of candour in this arena and the potential failure of
such rules due to ineffective enforcement would have a greater negative impact on
the legal profession than simply doing nothing about it. This potentially negative
impact fuels the argument that more rules will not necessarily resolve the issue and
only cause further confusion among legal practitioners.
To date, this third solution, namely to do nothing about the issue of lawyer
deception in negotiation, appears to be most common, especially in the United States,
where there has been widespread criticism of the current model rules of professional
997
conduct and its apparent explicit support for deception in negotiation. This also
appears to be the preferred solution in other common law jurisdictions such as Australia,
most of Canada, Hong Kong, and the United Kingdom, where, on the face, legal ethics
codes appear to prohibit deception in any form yet do not seem to address negotiation
998
as a separate subject with regards to such prohibitions.
994
Oxford English Dictionary, above n 33 (a Latin legal term for "(a condition) without which
it could not be" or "but for..." or "without which (there is) nothing.")
995
White, above n 60, 927-928.
996
White, above n 60, 927.
997
Referring mainly to Rule 4.1 of the American Bar Associations Model Rules of Professional
Conduct
998
See, eg, Mize, above n 66, 245 (discussing the lack of clarity in the professional ethics codes of New
Zealand regarding this issue). The same could be said of the legal ethics codes analysed in this thesis.

To date, three primary solutions have been proposed to manage the issue of
lawyer deception in negotiation. While the decision to do nothing and thus refrain
from managing lawyer deception in negotiation may be justified, the prevailing news
from consumer and industry studies of the profession discussed above suggest that
this issue can no longer be ignored. There are at least eight plausible reasons why
the proposals above have not as yet been adopted and why the issue of lawyer
deception in negotiation remains an uncharted area for serious reform.
The first most common reason for lack of reform on this issue appears to be
the nature of the negotiation process itself. Negotiation is largely seen as a private
999
dispute resolution process. The private, informal, and voluntary nature of
negotiations as well as its flexibility and confidentiality is precisely what makes it an
attractive process for deal-making and reaching acceptable agreements. Behaviours
in negotiation are not subject to the same public scrutiny as behaviours in more
1000
public dispute resolutions forums such as arbitration or trials. Negotiation, at least
to date within the legal forum, has not been subject to formal rules and regulation or
ethical standards. Unlike mediation, which has undergone an evolution to now be
1001
formally recognised as a function of lawyers with specific mediation ethics codes
and accreditation requirements, negotiation has not been part of the same
evolutionary process. Yet negotiation is an integral foundation process to mediation
and other recognised dispute resolution processes.
See Chapter 4 (Efforts by Professional Ethics Codes to Regulate Deceptive Behaviours in

Negotiation) for a detailed study and discussion of legal ethics codes.
999
White, above n 60, 926; Mize, above n 66, 246-247 (discussing the features of negotiation which
make it hard1000
to regulate in terms of deception or, as Mize terms it, strategic
posturing.). White, above n 60, 926.
1001
Note: By this I mean that nearly all the common-law legal ethics codes studied in this thesis
recognise the lawyers role as a mediator (third-party neutral) by stipulating this in a separate chapter of
the legal ethics code with specific legal ethics rules or referring to it in the body of the legal ethics code.

Because of the private and informal nature of negotiation, the
opportunities to use deceptive tactics are abundant and the chance of
punishment for such behaviour is low. In addition, negotiation is ubiquitous to
society since it happens in various forums on a daily basis. Finally, the
prevailing literature on negotiation seems to glorify the level of acceptable
1002
lying and misrepresentation in negotiations, making it harder to regulate.
A second reason for lack of reform on the issue of lawyer deception in
negotiation is that for many practitioners and scholars, law is considered just a game
1003
with its own set of unique rules. An integral component of those who consider law
as just a game is that negotiation is also a game. It is not separate from law but
integrated into the business of law. Because negotiation is considered integral to the
1004
practice of law, it could be argued that not only is it inefficient to impose harsh
regulations around the behaviour of a game, but that changing the rules of the game
1005
would only confuse the players, who already accept the rules, written or not. This
view has as much to do with prevailing negotiation theory and principle as with the
limitations of the legal system. The impact of negotiation theory and principles on the
lack of reform is discussed briefly below.
First, negotiation theory and principles recognizes the use of distributive,
1006
fixed-pie, competitive negotiation tactics, including deception. While negotiation
1002
See, eg, Karrass, above n 919, 23, 107; Karrass, above n 919, 187. Karrass is regarded
as a leader in business negotiation books, and actually states that bluffing and a level of
misrepresentation are part of negotiation.
1003
Discussion Paper 62, above n 560, 7; Cooley, above n 27, 274-276; Van M Pounds, Promoting
Truthfulness in Negotiation: A Mindful Approach (2004) 40 Willamette Law Review 181, 189.
1004
Wetlaufer, above n 31, 1220. There are also numerous books and articles that support this.
1005
Cf Wetlaufer, above n 31, 1248-1250 (arguing that the its part of the game excuse is ethically
impermissible because there are no rules to negotiation within the meaning of the word rules). 1006 Note:
Some would argue that distributive, fixed-pie negotiations is no longer the more widely supported
negotiation theory and that interest-based negotiation is the new model (See, eg, Bordone,

theory does not directly support the use of lying in negotiations, it does recognize
that parties to a negotiation, even one that starts out as interest-based, may engage
in deceptive tactics as part of the game. As discussed earlier in Chapter 2 regarding
1007
various bargaining ethics models, a negotiator with a poker ethic, end-results
ethic or personalistic ethics that condones lying is not likely to have a problem with
using deceptive tactics, regardless of his opponents view or ethics model. A
deceptive tactic is simply an acceptable part of the game.
Second, if the legal ethics codes are considered to be part of the rules of the
game for the legal professional, then we have seen that they permit a certain amount
of deception, consistent with acceptable negotiation theory and principles. In the
United States, for example, Rule 4.1 of the ABA Model Rules of Professional Conduct
has withstood over twenty years of debate and criticism regarding its apparent
1008
support for certain perceived deception in negotiations. It appears that even the
drafters of Rule 4.1, when referring to generally accepted conventions in
1009
negotiation, recognize that there are certain understood and acceptable steps to
the negotiation process, such as history of offers, puffing, and certain exaggeration,
that are normal. Furthermore, scholars provided insight that the drafters of the ABA
Model Rules most likely realized that words alone are insufficient to impact behaviour
and that imposing additional rules would only as another bargaining chip under the
1010
current legal culture.
above n 96, 16-20); however, such views are also disputed, especially in more competitive markets
such as commercial negotiations and some international trade
negotiations. 1007 Shell, above n 227, 65-69.
1008
Pounds, above n 1003, 189, 195-196 (more recently, modifications to Rule 4.1 were
considered at the Ethics 2000, but not adopted).
1009
Model Rules of Professional Conduct, above n 293, Rule 4.1.
1010
Pounds, above n 1003, 195-196. See also Discussion Paper 62, above n 560, 7-9.

Similarly, in Australia, Section 52 of the Trade Practices Act 1974 also
allows for certain levels of deception, such as opinions that might inadvertently
1011
turn out to be false and subjective assessments of products and services.
While s 52 imposes a standard of proof lower than the reasonable person
1012
standard, it nonetheless appears to allow for shades of deception.
Finally, practitioners recognize that deception and some forms of lying are an
inherent part of negotiations, whether they are mediated negotiations or those conducted
between the parties themselves. As such, no amount of regulation will completely
eliminate its use. The examples of mediation are used here because the mediation
process is essentially facilitated negotiations and thus these examples serve to illustrate
1013
the extent to which negotiation behaviour permeates other areas of the lawyers role.
For example, Cooley argues that a mediator can end up being one of the most ardent
users of deceptive tactics in order to manipulate information for the benefit of the parties,
1014
especially in caucused mediations. Furthermore, as the chief information officer of
the negotiation, a mediator is in a unique and powerful position to control the flow of
information, the content, the framing of information, and engaging in his/her own set of
1015
tactics quite apart from those used by the parties. Even if additional rules were
implemented to impose candour, Cooley argues that the rules must be compatible with
the games nature and purpose...must
1011
Pengilley, above n 576, 114.
1012
Pengilley, above n 576, 113-117.
1013
See, eg, Laurence Boulle, Mediation Skills and Techniques (2001); Laurence Boulle, Mediation:
Principles, Process, Practice (1996) (defining mediation as all forms of decision-making in which the
parties concerned are assisted by someone external to the dispute, the mediator, who cannot make
binding1014
decisions for them but can assist their decision-making in various
ways) Cooley, above n 27, 264-266.
1015
Cooley, above n 27, 264-266; See also Christoper M. Moore, The Mediation Process:
Practical Strategies for Resolving Conflict (1986) 269 ([t]he ability to control, manipulate,
suppress, or enhance data, or to initiate entirely new information, gives the mediator an
inordinate level of influence over the parties.).

not significantly interfere with the means by which the players can
accomplish the games purpose [i.e., to resolve conflict]must be
comprehensible, reasonable, and fair [and they] must be capable of
1016
compliance by all the games players in all situations. This seems a
high bar to place on imposing truthfulness in negotiations.
In brief, the second plausible reason for lack of reform is that negotiation is
widely understood to be a game where certain accepted and tacitly agreed-upon rules
apply. Part of those unspoken rules of the bargaining game is that tactics such as
deception, puffing, and exaggeration are normal and not to be taken at face value. In
fact, they are sometimes considered efficient to the extent that parties expect them and
the transaction costs are likely built-in to the negotiation. If this is the prevailing view in
society, it seems implausible to impose honesty by lawyers in a process that, by its very
nature, appears to demand dishonesty in order to succeed.
A third reason for lack of effective reform in this area, particularly in the United
1017
States, appears to be due to the American Bar Associations reluctance or failure
to see that there is an issue with regards to lawyers deceptive behaviour in
negotiation. There is a high degree of consensus among legal scholars that the
ABAs failure to recognise key issues, including lawyer deception in negotiation, and
its failure to act on them, is foundational to the problems plaguing the U.S. legal
1016
Cooley, above n 27, 274-277.
1017
The term Bar in this chapter is used to mean the bar associations of each country and
legal jurisdiction responsible for regulating it members and their conduct under various
rules and professional ethics codes. In this case, I am specifically referring to the American
Bar Association since it appears to recognise negotiation and deceptive behaviour in
negotiations in line with general conventions of negotiation.

1018
profession today. Some argue that the ABA appears to have gone even further by
actually advocating for greater leniency in allowing some level of deception in
1019
negotiation. This is primarily in the form of imposing a materiality requirement on
the facts or law stated to induce or be considered deceptive or fraudulent. By this I
mean that the ABA legal ethics rules generally refer to lawyers not being deceptive
about material facts or law rather than requiring a blanket prohibition on deception
of all facts or law. However, at least one legal scholar in the United States believes
the ABA has reviewed the issue of lawyer deception in negotiation and has taken
appropriate action given an understanding of human nature, the negotiation process,
1020
and what the ABA and state bar associations can effectively control.
In Australia, even though commercial and consumer regulation such as
Australias Trade Practice Act 1974 appears to be aimed at the Australian legal
1021
profession, the profession itself does not appear to readily recognise its
applicability to their members. However, as stated earlier in this chapter, the
Australian Competition and Consumer Commission consider the Trade
Practices Act as applicable to all professions, including the legal profession.
A fourth interrelated reason for lack of reform on this issue is the largely self-
regulated nature of the legal profession, which is more likely to act in accordance with
1018
Lowenthal, above n 28, 411; Loder, above n 533, 45; Wetlaufer, above n 31, 1219; Rubin, above n
69, 577; Deborah L Rhode, Law, Lawyers and the Pursuit of Justice (2002) 70 Fordham Law Review
1543, 1556-1559.
1019
Thurman, above n 148, 103-104.
1020
White, above n 60, 927-931 (discussing the possible issues that the drafters of the American
Bar Association Model Rules may have considered in determining the difficulty of imposing ethical
norms on negotiation). This discussion does not appear to be as robust in Australia.
1021
Pengilley, above n 576, 113-129; See also Study of the Professions legal: Summary of Final
Report, above n 925, 7 (recommending that the Act apply equally to legal professionals).

1022
its own best interests. One of the common features of a predominantly self-regulated
model is a profit-motivated enterprise and a role-morality ethic that many credit as being
the reason why lawyers potentially act outside the bounds of societys expectations of
acceptable behaviour. The role-morality ethic of lawyers allows them to act in accordance
with the best interests of their clients and the legal profession regardless of whether such
conduct may be inconsistent with how society expects lawyers to behave. Any external
regulation which would negatively impact the profession would likely not be imposed or
accepted. This is even more so in the case of imposing certain core values, such as
honesty in negotiation. In addition, the profession may not see the issue of deception in
negotiation as a serious enough issue to warrant reformatory action. For example, the
lack of ethics violation cases in Queensland stemming from prohibited conduct in
negotiation would seem to allude to the possibility that, at least in Queensland, the issue
of lawyer deception in negotiation is isolated or non-existent and does not warrant any
1023
regulatory controls.
A fifth plausible reason for lack of reform in the area of lawyer deception in
negotiation is that clients who expect a certain amount of zealous advocacy from
their lawyers are not likely to complain if their lawyer wins the case and protects or
maximises the clients interest , even if the lawyer engaged in deceptive conduct.
Many such clients, if they are happy with the outcome, are likely to praise the result
rather than admonish the potentially deceptive tactics used to gain a favourable
outcome. Another potential scenario is that because the use of certain
1022
See, eg, Parker and Sampford, above n 200. Note: The Queensland legal system
discussed in Chapter 4 is an example of a system that is currently more co-regulated with
the intervention of other professional and governmental bodies.
1023
See Chapter 6 for a more detailed discussion of the analysis of legal ethics
violation cases in Queensland for deceptive or misleading conduct.

misrepresentations and deceptions is widely accepted in negotiations and
because clients themselves may engage in such behaviour on a regular
basis, they are less likely to consider the deceptive behaviour of their own
1024
lawyer, albeit against an opponent, as immoral or unacceptable.
A sixth potential reason for lack of reform in this area is the nature of human
beings as it relates to lying and the effort it might take to change engrained
behaviours in the social fabric. It could be argued that lying is as old as time. It is part
of the fabric of human nature. From the time of the Ten Commandments, where lying
1025
was strictly forbidden, society has evolved to accept that there may be times
when lying is necessary and the best strategy, such as when attempting to avoid
hurting other peoples feelings or when it might cause harm. Society even appears to
1026
tolerate outright lying in certain circumstances.
In 1894, John Locke recognized this fascinating aspect of human
nature, stating [i]t is evident how men love to deceive and be deceived
since rhetoric, that powerful instrument of error and deceit, has its
established professors, is publicly taught, and has always been had in
1027
good reputation; men find pleasure to be deceived.
In 1968, Arendt argued that our ability to lie but not necessarily our ability
to tell the truth belongs among the few obvious demonstrable data that confirm
1024
Note: This possible reason for lack of reform might conflict with the consumer studies discussed
earlier; however, at this time, there do not appear to be studies that report on the correlation between a
client being happy with the results of their case and therefore having a positive perception of their legal
practitioner or the converse. As such, this paragraph provides only one of several possible explanations
for the lack of reform on the issue of lawyers deceptive conduct in negotiation.
1025 th
Most commonly recognized as the 9 Commandment - Exodus 20:16 "Thou shalt not bear false
witness against thy neighbour."
1026
Cooley, above n 27, 263.
1027
Barnes, above n 7, 3.

1028
human freedom. Scholars argued that lying is one of humankinds distinguishing
features from the animal kingdom. The ability to tell a lie and to do so effectively became
the hallmark of human creativity and freedom, a God-given right as argued by
1029
some.
In 1983, Barwise and Perry affirmed this by basically arguing that it is only
because people violate the conventions of language (i.e., by lying) that we are
1030
able to recognize truth as uniformity across certain utterance situations.
They seem to argue that it is because people lie that we are able to tell what is
considered a standard of truth; if they did not, then we would never notice truth
1031
as a property of some utterances and not others.
Scholars may justify lying by stating that it was essential to human creativity and
freedom. However, social psychology confirms the propensity of people to lie in a variety
of circumstances simply because the heuristics and systematic biases inherent in human
1032
nature increase the probability of lying. For example, it is natural for people to: a)
believe our own cause is just over the other partys saying the same; b) to assume the
worse with regards to our adversarys motives, character, and conduct yet assume the
best with respect to our own; c) to accept as sufficient the justifications we give to
ourselves regarding the lies we tell but to devalue the justification of others; d) to believe
that the lies we tell are better justified that those told by our opponent; and e) to devalue
an offer or opinion of another party without
1028
Barnes, above n 7, 3 (discussing Arendt (1968:
250)). 1029 Ibid.
1030
Barnes, above n 7, 3 (discussing Barwise and Perry (1983: 18)).
1031
Barnes, above n 7, 3 (discussing Barwise and Perry (1983: 18)).
1032
Wetlaufer, above n 31, 1232; See also Korobkin and Guthrie, above n 79, 795; Chris
Guthrie Insights from Cognitive Psychology (2004) 54 Journal of Legal Education 42.

1033
any reason, simply because they come from someone else. Such inherent
human biases combined with a competitive negotiation environment only
1034
increase the probability that people will lie in negotiations.
Additional evidence of the nature of human behaviour with respect to lying can be
found simply in the engrained workings of modern society. Today, a global economy,
advanced technology, and the economic rise of once third-world economies have created
increased competition. Competition, by nature, involves the importance and pursuit of
1035
winning. Competitors generally engage in competitive, win-lose, fixed pie
1036
thinking. As a result, parties in competition will tend to use distributive bargaining
tactics to claim the maximum value from a presumably fixed-pie. Such distributive
bargaining tactics are, by their very nature, not cooperative. Lying is one such tactic and
can be used strategically in an attempt to gain maximum advantage in a negotiation. This
appears even truer for legal professionals in an adversarial system, whose careers
1037
depend on effective negotiations to deliver results.
The use of deception is also engrained into society by the legal professionals
clients who demand a certain level of success from their lawyers. Clients have come to
expect the lawyer to serve as advocate and protector of the clients interests as affirmed
by the lawyers tenets of duty, loyalty, and zealous representation of their
1038
clients.
These professional tenants influence the negotiation behaviour of legal
1033
Wetlaufer, above n 31, 1232; Korobkin and Guthrie, above n 79, 795; Guthrie, above n
1032, 42 (discussing the impact of heuristics and biases in negotiations).
1034
Wetlaufer, above n 31, 1232 (citing Sisela Bok as stating that [b]ias skews all judgment,
but never more so than in the search for good reasons to deceive. Sisela Bok, Lying: Moral
Choices in Public and Private Life 26 (1978)).
1035
Pounds, above n 1003, 187.
1036
Win-lose and fixed-pie mentality are generally associated with distributive bargaining.
1037
1038
Pounds, above n 1003, 182; see also Wetlaufer, above n 31, 1220 and 1272 (discussing the nature of
lying as used by legal professions under the guise of the duty of loyalty and zealous representation).
professionals in such a way that lawyers may use deception to obtain the best
possible outcome for their clients. The legal system expects this and so do clients.
However, some argue that the duty of loyalty and zealous representation does not
logically translate into an excuse to engage in deceptive tactics that might reflect poorly on
the lawyer (by committing bad acts), the legal profession, or the publics perception of the
integrity of the legal profession. The argument appears to be that the legal practitioner
could condition an offer of representation by stating that the lawyer will not commit
1039
ethically improper acts. This might be a challenge because it requires a change in
engrained behaviours. Lawyers and the public have been trained on and come to accept
certain negotiation practices as permissible, including the use of some deception in
1040
negotiation. As social scientists have repeatedly observed, changing such engrained
behaviours is fundamentally hard given natural human tendencies even if you are trying to
1041
make a discerning choice. In addition, controlling such practices may have an impact
on expectations of justice or on durable agreements long considered the hallmarks of
effectively negotiated agreements.
A seventh and perhaps most important consideration for lack of reform in the
area of lawyer deception in negotiation are the transaction costs of imposing candour in
negotiation. While there may be potential benefits of imposing laws on candour in
negotiations, there are likely to be costs which might outweigh the potential benefits.
First, the legal system is not without its limitations. It has contextual constraints, time
constraints and is subject to resource and cost constraints just like any other business.
For example, law deals with attempting to reconstruct past events, not so much in
1039
1040
Cooley, above n 27, 268.
1041
Pounds, above n 1003, 224, n 252.

finding facts but in attempting to re-determine what might have happened based on
1042
many peoples perspective of the events. Because law, and therefore legal
professionals, become a player after the game has already started, there is
1043
possibility for error on many levels. In addition, law must account for transaction
costs associated with providing the service of justice. Due to these inherent
limitations of the adversarial system, it is argued that law might have to accept some
forms of deceits, such as those which will not affect the overall outcome of the case,
1044
impose an insurmountable burden of proof, or those which are undetectable. In
an effort to meet the goals of closure to disputes, access to courts, speedy trials,
administration of justice, and remedies, the legal system must weigh the transaction
costs of doing justice with the costs of actually uncovering the truth.
Furthermore, while imposing candour in negotiations is an admirable
goal, even proponents recognize that the transactions costs associated with
this would be the biggest hurdle. A higher standard might become one more
weapon in the adversarial arsenal, with each side threatening to bring ethics
1045
violation charges against the other. This would result in an increase in
overall transaction costs for handling the case.
Finally, the eighth reason why each of the various solutions proposed to date
have not been implemented or adopted is because they appear to be an attack on
the legal profession and reinforce a litany of reasons why the profession is failing.
This is likely to put the legal profession on the defensive where the profession and its
1042
1043
Ibid.
1044
Ibid.
1045
Pounds, above n 1003, 195 (citing Robert H Mnookin et al., Beyond Winning:
Megotiating to Create Value in Deals and Disputes (2000) 293-294).

members will either act defensively and try to further hold on to their current
position and justify it or not act at all.
From the perspective of the legal profession, one could argue that each of the
three main solutions proposed to date are isolated solutions, addressing only one aspect
of a more complex problem involving multiple stakeholders. Attempting to adopt one
particular solution over another would be costly and potentially ineffective, especially
since decision making theories seem to suggest that there is insufficient deterrence for
1046
lawyers to not lie in negotiations. The solutions proposed to date also lack sufficient
empirical evidence to ensure success or viability on the one hand and appear to be too
broad and costly on the other. Therefore, both a new perspective and an integrated
approach are needed to address this timely issue impacting the legal profession, both
internally among legal practitioners and externally in the eyes of the public whom the
legal profession is meant to serve. This integrated path to policy reform is discussed
further in Chapter 7.
6.7 CHAPTER CO.CLUSIO.
This chapter summarised the critical findings of the research questions
established in Chapter 1 and identified the opportunity for professional reform
recommendations to address the issue of lawyers use of deception in negotiation.
The results of the first research question confirm that lawyers do engage in
deceptive tactics, even in negotiation, regardless of whether the legal ethics code
condemns all forms of deception. The results of the second research question, which
consisted of a comparative study of legal ethics codes, revealed that the legal ethics
1046
See Chapter 2, section 2.3.7 (Decision Making Theories Affecting Legal Negotiation);
See also Kahneman and Tversky, above n 265, 263 -291; Guthrie, above n 505, 163;
Rachlinski, above n 269, 113 (noting that [e]xpected utility theory predicts that people
make either risk-averse or risk-neutral choices.).

10
codes of the selected group of common law jurisdictions do not consistently
address the issue of deception in negotiation and fail to provide explicit guidance
on how lawyers ought to behave in negotiations. The results of the third research
question, which consisted of an original study of the Queensland ethics violation
cases alleging misleading or deceptive conduct, confirm that deception in
negotiation is not as effectively regulated as other violations of the legal ethics
code. Finally, the findings of numerous studies on lawyers and the legal
profession provide a compelling case for reviewing the impact of the legal ethics
codes on influencing the behaviour of legal professionals.
The collective findings from the three primary research questions and the
resulting insights as discussed in this chapter establish a compelling argument for
1047
policy reforms. The issue can no longer be ignored. The consumer studies
discussed in this chapter appear to indicate that the problem lies with how some
lawyers behave and conduct themselves in carrying out their responsibilities on a
daily basis. As the Gallop poll and ABA consumer studies are primarily from the
United States, and similar statistical data is not available for Australian lawyers, the
comments are directed specifically to the behaviour and tactics used by some
percentage of US lawyers. Since negotiation is a primary means by which lawyers
carry out their responsibilities, the way lawyers negotiate and the tactics and
behaviours they display (because they do so at every level of the legal process) are
sufficient enough reason to look at serious policy reforms in this area. If lawyers are
deceptive in negotiations, the profession will be considered deceptive and lacking
1047
See e.g. Kirby, above n 677 (discussing Dean Anthony Kronmans book The Lost Lawyer: Failing
Ideals of the Legal Profession and its impact and relevance to the Australian legal profession, including
proposals for reforms in the areas of legal ethics, professional reform, and legal ethics education).

integrity. This will be directly reflected in how lawyers and the profession are viewed
in the eyes of the public it is entrusted to serve. Regardless of whether the issue of
lawyer deception is considered a minor or major issue, there is hope through
implementing strategic, incremental changes that can have a positive, lasting impact.
Reforms aimed at how lawyers negotiate and minimising the use of tactics or
behaviours which are considered deceptive or misleading is a positive step towards
managing negative perceptions and improving the effectiveness of legal
professionals in serving their clients in the interests of justice and public welfare. To
the extent that policy reforms can influence the negotiation behaviours of lawyers
toward the use of more ethical, honest negotiation approaches as opposed to
adopting generally accepted negotiation conventions that consist of potentially
deceptive negotiation behaviour is the direct extent to which negative perceptions of
the legal profession may be minimized by the profession and the public. The next
chapter outlines a tri-partite, integrated policy reforms framework and discusses the
aims, benefits, and methodology for implementing the proposed reforms.

CHAPTER 7
IMPLICATIO/S FOR LAW REFORM
Any occupation or profession is unworthy if it requires of us

that we do as a functionary what we would be ashamed to do
as a private person.
1048
~ Sydney J Harris
This chapter focuses on the potential for integrated, systematic, and
creative legal and non-legal policy reforms to address the issues discussed in
1049
this thesis. This chapter develops a tripartite response approach to this cross-
jurisdictional, multidisciplinary issue. It offers recommendations for several reform
proposals along with a discussion of benefits and risks. In addition, this chapter
discusses cross-disciplinary views of how to engage effective and lasting
behavioural changes in order to implement the policy reform proposals discussed
herein. Finally, this chapter concludes with a call to action for the legal profession
to finally recognise that the profession has the opportunity to redefine itself in
terms of the research questions posed in this thesis and must now take solid
forward-thinking steps to address the issue of lawyer deception in negotiation.
7.1 I/TRODUCTIO/
Chapter 2 provided an extensive review of literature in the areas relevant to the
research questions posed in this thesis, including areas of legal ethics and negotiation.
Chapter 6 highlighted several solutions that have been previously introduced to
1048
DAmato and Eberle, above n 174, 762 (quoting Sydney J. Harris). See also
BrainyQuote, Sydney J. Harris Quotes
<http://www.brainyquote.com/quotes/authors/s/sydney_j_harris.html> at 9 August 2010.
1049
The term is adopted from Professor Charles Sampford in Stephen Parker and Charles Sampford,
Legal Ethics and Legal Practice: Contemporary Issues (1995). Sampford talks about an integrated
three-part solution to multi-disciplinary, complex issues such as those presented in this thesis and,
thus, the term is appropriate. Synonymous terms include: trilateral or three-way.

resolve the issue of lawyer deception in negotiation and the reasons why these
proposals have not, to date, been adopted. These proposals included the modifying
1050
the current legal ethics code, adopting an entirely new model of legal ethics, and
1051
maintaining the status quo. These various suggestions point to the difficulty in
addressing the issue of ethics, namely that irrespective of whether practitioners and
1052
scholars agree that the current legal ethics codes may be flawed, they appear to
1053
disagree on exactly what to do about it and how to execute that change. This
leaves the profession in a predicament because there are essentially two
diametrically opposed views along a continuum of possible solutions.
Along one end of the solutions continuum is the prevailing view to maintain
the status quo by keeping the adversarial-type ethic that appears to serve as the
hallmark and foundation of the common-law justice system. The current legal ethics
model is generally described as the standard conception model consisting of two
primary elements forming the core of the role-morality of lawyers. The first element
is called the principle of partisanship and the second element is described as the
1054
principle of non-accountability. The partisanship principle is one of the
hallmarks of the legal system in terms of zealous representation of clients. The
ramification of the partisanship principle is that it creates an impression (often
1050
Note: I am referring primarily to the literature from the United States regarding the American Bar
Association Model Rules of Professional Conduct because of the significant debate surrounding Rule 4.1
and negotiations. While the same issues may not apply to the other common-law jurisdictions, the concern
that the legal ethics code based on an adversarial system is flawed is applicable to these same
jurisdictions and that is the focus of this section.
1051
See Chapter 6, Section 6.6 (Failure of Prior Proposed Reforms and A Call to Action) for more
information.
1052
Rhode, above n 151, 0-21 (....bar ethical codes are not an adequate source of guidance....end
up reflecting too high a level of abstraction and too low a common denominator of conduct.).
1053
Rhode, above n 975, 867 (...bars prevailing ethics norms are fundamentally flawed and their
inadequacies carry a substantial cost for both the profession and the public. Where the commentators
differ, both with Simon and each other, is on plausible prescriptions...)
1054
Parker and Evans, above n 156, 21-23; Luban, above n 157. See also Chapter 2 (Review
of Literature) for a more detailed discussion of the standard conception model of legal ethics.

10
negative) in the minds of clients and the public (especially those who feel they have not
received justice or their interests have been compromised) that lawyers are amoral, which
1055
is commonly perceived as lawyers not being accountable for their actions.
This triggers the non-accountability principle. While a lawyer is meant to serve all equally,
a lack of integrity in the way the lawyer carries out his/her task (e.g., by engaging in
deceptive conduct in negotiations) leads scholars and practitioners to argue that the
current legal ethics model is flawed and irreprehensible in contravention of the public
1056
interest. Scholars acknowledge the limitations of partisan advocacy yet also argue
that a totally non-partisan system is likely impossible since those disputes which cannot
1057
be resolved by negotiation may end up in court, where partisan advocacy prevails. It
seems that the legal system which appears to receive so much criticism from the public
and the profession is the same system which places value on client loyalty, rewards
zealous representation of the clients legitimate goals within the bounds of the law,
advocates without discrimination, offers representation regardless of a clients financial
means, and strives to set aside personal loyalties, values, and morals when representing
1058
a client.
Despite these virtues of the standard conception model (adversarial ethic), the
ambivalence about the legal system and its practitioners appears to come not from the
adversarial ethic itself but from the lack of fulfilment of the highest standards that the
standard conception model is meant to signify within the context of the fulfilment of
1055
Note: I would argue that it is unrealistic to expect that lawyers are completely not aware of their
own personal morals and values in the course of representation or that these personal beliefs do not
impact their representation. The key here is that without specific and practical tools of dealing with the
possible ethical conflicts, a lawyer might revert to a personal ethic that is in direct conflict with the
lawyers 1056
role as an officer of the court and defender of public
interest. Whitton, above n 603; Rhode, above n 975, 867.
1057
Mize, above n 66, 248.
1058
Parker and Evans, above n 156, 16-17; Rhode, above n 151, 15.

the promise of law. By this I mean that the most ethical interpretation associated with the
principle of partisanship is a clients ability to have his/her interests heard and accounted
for by a legal professional versed in representing those legitimate interests in a forum of
ordered dispute resolution. In addition, the most respectable view associated with the
principle of non-accountability is not that the lawyer is completely devoid of good morals
or values and thus is amoral. Instead, in this case, perhaps a more reasonable
interpretation is that the lawyer is expected and bound by the legal ethics code to
represent equally without discrimination or judgment and not allow conflicting personal
1059
values to infringe upon the clients legitimate representational goals. The erosion of
that high standard of professionalism is reflected, in part, in the way lawyers negotiate,
the use of potentially deceptive behaviours in negotiations, and a lack of clarity on the
standards that apply to a lawyers now most prominent function negotiators of deals,
1060
information, and agreements. These three factors affect the extent to which the legal
ethics codes can be successful in addressing the issues related to lawyer deception in
negotiation.
On the other hand of the solutions continuum is a recommendation to adopt an
1061
entirely new legal ethics model. For example, Simon would argue for a legal ethic
1062
based on contextualism. Simon argues that lawyers should abandon the dominant
1059
By this I mean requests and objectives which are within the bounds of the law and consistent with
the role of the lawyer as and officer of the court.
1060
Eyster, above n 977, 756-757 (...the reasons we have been unsuccessful in achieving a satisfactory
negotiation ethic go to the heart of our system of legal education and our related beliefs about
professionalism.); Rhode, above n 151, 210; Davis, above n 171, 347 (discussing how professionalism is a
contract implied-in-fact with the public and therefore includes moral obligations that must be
honoured).
1061
See Chapter 6, Section 6.6 (Failure of Prior Proposed Reforms and A Call to Action)
for more information.
1062
See generally Simon, above n 191. See also Thurman, above n 148, 103
(discussion situation ethics and arguing against it in favour of greater veracity by lawyers
in negotiation and in all their dealings).

view (standard conception) that allows lawyers to pursue any justifiable and legal
1063
goals of the client in favour of a model of legal ethics called contextualism.
Under this approach, lawyer should take such action as, considering the relevant
1064
circumstances of the particular case, seem likely to promote justice. This
means that, for example, in the context of negotiations, a lawyer would factor into
1065
her decision-making and conduct her personal values and professional ethics
and not be constrained by or take [ ] refuge behind categorical rules of zeal,
1066
confidentiality, and moral neutrality toward the client's ends.
For example, where a lawyer is representing a poor or powerless client
against a more formidable, forceful and powerful adversary, Simon suggests that
the lawyer should not be constrained by rules of ethics and should try and
achieve a fair and just result, even if that means working with and assisting the
1067
adversary. Eyster appears to agree with Simon to the extent that ...attorneys
should indeed be governed in their decisions and actions by their moral
1068
beliefs. In addition, both Luban and Simon agree on the basic principle of
1069
advocating for ethically ambitious or high-commitment lawyering.
However, there is danger in adopting Simons approach wholesale. One
troublesome aspect of Simons proposal is the potential for total disregard of the legal
1063
Simon, above n 191, 109.
1064
Simon, above n 191, 5-9; See also William H Simon, Ethical Discretion in Lawyering (1988) 101
Harvard Law Review 1083, 1090.
1065
Eyster, above n 977, 780 (citing Simon, above n 1064, 1113-1119). Eyster goes so far
as to state that while she was initially shocked by Simons proposal, she now agrees that
... attorneys should indeed be governed in their decisions and actions by their moral
beliefs. (Eyster at 780). This is troubling in that it assumes that values such as fairness
and justice are not pursued under the current adversarial or standard conception ethic.
1066
Luban, above n 1069, 885-888 (critiquing Simon, above n 191).
1067
Eyster, above n 977, 780 n 90 and 91 (citing Simon, above n 1064, 1105-1106,
1098-1099). 1068 Eyster, above n 977, 780.
1069
Simon, above n 191 9; David Luban, Reason and Passion in Legal Ethics (1999) 51
Stanford Law Review 873, 885-888 (critiquing Simon, above n 191).

rules which are meant to set the boundaries between professional duties and
personal beliefs. Another area of concern is the extent to which an individual
lawyers personal judgement is consistent with or in contravention of definitions of
justice. For example, justice may mean one thing to a client, another to the
lawyer, and yet have another, different meaning within the justice system. By
allowing or advocating for potentially unfettered or unreasoned personal
judgment in the context of executing a public servant role, the lawyer acting
under contextualism (situation ethics) may undermine more than help the client.
Further, practitioners have criticized Simons preferred theory of legal
ethics as far reaching, lacking in statistical data, and devoid of detailed
anthropological studies of particular lawyerly cultures that prove the malaise and
1070
collusion that Simon believes is plaguing the profession. Perhaps a central
concern is expressed by another prominent legal ethics theorist, that Simons
proposal of contextualism is a law-centered theory... [t]he values he wants
lawyers to further are legal values; the justice he means them to pursue is legal
1071
justice. The concern appears to be that Simons contextualism essentially
attempts to dilute the adversarial nature of the current legal ethics model in
favour of Simons own view of how values such as justice and fairness can be
achieved, albeit still within the legalist structure of the current system.
Luban argues that Simons approach is still about legal judgments grounded in
the methods and sources of authority of the professional culture, excluding
1070
Luban, above n 1069, 885-888 (critiquing Simon, above n 191); Smith, above n
976, 2-4. 1071 Ibid.

1072
considerations of ordinary morality. This is in direct contrast with more
1073
morality-centred legal ethics models. Eyster appears to recognise this
concern and states that while personal beliefs and judgement should be part
of a lawyers decision-making process, discretion, in order to be exercised
responsibly, must be through the development of moral judgment within the
profession and that the profession must accept moral judgment as a norm,
1074
something that appears to be highly lacking in the current environment.
In summary, adopting one approach (amend the legal ethics code) or the
other (adopt a new legal ethics code) is an on-going debate that has been unresolved
over the better part of the last twenty years. Regardless of whether the majority of the
profession and practitioners agree that the current legal ethics model is outdated or
too adversarial, the fact remains that there is no growing consensus on how to
1075
address this aspect of the professions discontent. Furthermore, adopting either
approach as the single solution to the issue of lawyer deception in negotiation seems
to be a classic case of trying to solve an issue within the inherent constraints of the
professions expertise. As paraphrased from Einstein, solutions to problems cannot
be approached from the same consciousness that created those problems else
1076
insanity ensues. The issue of lawyer deception in negotiation is a complex, multi-
disciplinary issue involving multiple stakeholders. It is an issue which cannot be
resolved solely by the profession.
1072
Ibid. Luban argues that this approach is in direct contrast to morality-centred theories of legal
ethics. See also Luban, above n 157 (advocating for a more morality-centred view of legal ethics).
1073
See, eg, Luban, above n 157 (advocating for a more morality-centred view of
legal ethics). 1074 Eyster, above n 977, 780-781.
1075
Rhode, above n 975, 867-872.
1076
Thinkexist.com, Albert Einstein quotes (2009) <http://thinkexist.com/quotes/albert_einstein/>
at 9 August 2010. This is paraphrased from two well -known quotes by Einstein: No problem can
be solved from the same level of consciousness that created it. The second quote is: Insanity:
doing the same thing over and over again and expecting different results.

The solution to the issues identified in this thesis as related to lawyer
deception in negotiation requires an alternative perspective. This includes a
multidisciplinary approach which aims to take small, measurable steps
utilising varied expertise targeted towards the development of incremental,
progressive changes using a different mindset. This can be achieved through
the policy reform proposals recommended and discussed in this chapter.
The tripartite approach of ethical standard setting, legal regulation modifications
and institutional design reform, discussed in the next section, provides an opportunity
for all key stakeholders to be participants towards progressive evolution of the
profession, especially in addressing the issue of lawyer deception in negotiations. This,
in turn, will create a positive impact across all areas of a lawyers daily practice. The
tripartite framework adopted here was initially proposed by Professor Sampford in the
1077
context of business ethics and public sector ethics issues. This tripartite combination
of ethical standard setting, legal regulation and institutional design reform has also been
1078 1079 1080

called an ethics regime, an ethics infrastructure, and an integrity system
by various noted authors and
1077
Parker and Sampford, above n 200, 11-12 (discussing that many of the key problems faced
by the West in the late twentieth century are institutional problems and that answers to many of
the problems require a tripartite response that consists of a combination of: 1) legal reform; 2)
ethical standard setting; and 3) institutional design). As with any major problem, an integrated
solution that invites and involves the various stakeholders is an important and necessary element
of success. See also the various publications of Professor Sampford in relation to business ethics
and public sector ethics: Charles Sampford, Law, Institutions and the Public Private Divide (1992)
Federal Law Review 20, 185; Charles Sampford and David Wood, The Future of Business Ethics:
Legal Regulation, Ethical Standard Setting and Institutional Design (1992) Griffith Law Review 1,
56; Charles Sampford, Institutionalising Public Sector Ethics in Noel Preston (ed), Ethics for the
Public Sector: Education and Training (1994).
1078
Noel Preston, Charles Sampford and Carmel Connors, Encouraging Ethics and Challenging
Corruption: Reforming Governance in Public Institutions (2002) 7 (citing Sampford 1994a)
1079
Preston, Sampford, and Connors, above n 1078, 7, 9-10 (citing PUMA/OECD 1997: 12);
Organisation for Economic Co-Operation and Development, Proceedings of the 1997 OECD
Symposium on Ethics in the Public Sector (1999) 69-70
<http://www.oecd.org/dataoecd/40/15/2093526.pdf> at 9 August 2010 (discussing the definition of an

international agencies. The goal is to present the policy reform proposals with the
recommendation that an integrated solution is required, not just reforming one aspect
in hopes that it will sufficiently and fully address the problems discussed in this thesis.
7.2 POLICY REFORM PROPOSALS - A TRIPARTITE RESPO/SE
The tripartite response to the issue of deception in negotiation involves an
integrated set of strategic policy reforms, each discussed in separate sections below.
These reform proposals are centred on legal regulation reforms, reforms in ethical
standard setting, and institutional design reforms. By integrated, I mean that the reform
proposals under each of the three areas are meant to complement each other so as to
achieve a cohesive, consistent response to the issues discussed in this thesis.
Collectively implemented, the following are the principal goals of
these recommended reforms:
to consider the issue from a multi-faceted, integrated
approach which recognises that a lasting solution must have
the participation and cooperation of all key stakeholders;
to encourage greater consistency and clarity in the language of
legal ethics codes such that they recognises the various functions
of lawyers in todays global marketplace, especially the increasingly
important role of lawyer as negotiator;
to introduce recommendations for greater education in the areas of ethics
that consists of moral reasoning, greater moral analysis of legal problems
ethics infrastructure as indicated in PUMAs 1997 report Managing Government Ethics, as

comprising eight key elements, two of the elements being an effective legal framework,
and an ethics co-ordinating body.)
1080
Preston, Sampford, and Connors, above n 1078, 7 (citing Transparency International 2000);
Jeremy Pope, TI Sourcebook 2000 Confronting Corruption: The Elements of a Uational Integrity
System (2000) <http://www.transparency.org/publications/sourcebook> at 9 August 2010.

and consistency of decisions between legal ethics and general morality;
and
to propose changes to both the legal ethics and negotiation curriculum taught
at law schools so that law students who take these courses have a clearer
understanding of the interdependencies between these topics and its
impact on the daily tasks of legal professionals.
The reform proposals start by looking at reforms in legal regulation, then
address proposed changes to ethical standard setting and conclude with
suggested reforms on institutional design which frequently affect the ability to
effectively implement and enforce policy choices and intended behavioural
changes. Finally, a discussion and analysis of various means of implementing
the recommended policy proposals demonstrates that these proposals can be
successfully implemented with maximum benefit and minimum risk.
7.3 LEGAL REGULATIO/ REFORMS
As defined in Chapter 1, legal regulation is integral to regulating the conduct
of members of the profession by re-enforcing existing codes of conduct and
providing disincentives for engaging in poor conduct. As Preston, Sampford
and Connors argue, legal regulation plays a part in an integrated system of
1081
each jurisdictions overall governance. Where legal regulation is
inconsistent with or in contravention of the values it is meant to serve and the
1082
means used to achieve those values, it should be amended accordingly.
1081
Preston, Sampford, and Connors, above n 1078, 187.
1082
Ibid. See also W William Hodes, Truthfulness and Honesty Among American Lawyers: Perception,
Reality, and the Professional Reform Initiative (2002) 53 South Carolina Law Review 527, 537 (Unless
the organized bar cleans its own house, sooner or later government agencies will remove the unique
measure of self-regulation granted to the legal profession and step in to clean it for us.).

One of the central questions that seem to underpin the possible lack
of reform in the area of legal regulation is evidence-based conclusions of
whether the legal ethics codes are really effective in providing sufficient
1083
guidance to lawyers in managing and regulating lawyer conduct.
Historically, lawyers received guidance on how to conduct themselves in
professional settings through information handed down from one generation of
lawyers to another through word of mouth, law society dealings in disciplinary
1084 th
matters, remarks from the bench, and so on. At the beginning of the 20
century, the North American legal profession formally adopted professional codes of
conduct meant to provide guidance on how lawyers should behave professionally.
The intent of these professional codes of conduct was to assist lawyers in engaging
in a consistent and appropriate course of conduct in their daily practice. However,
despite the intent of the professional codes of conduct in providing guidelines for
appropriate conduct in practice, they do not appear to be the primary source that
lawyers refer to when attempting to resolve ethical dilemmas.
Wilkinson, Walker and Mercers research initiative on this topic in Ontario,
Canada seems to confirm that the majority of lawyers practicing in Ontario, Canada who
participated in the study demonstrate[d] a lack of reliance on professional codes for the
purpose of resolving ethical issues... [and that] such codes tend[ed] to inhibit ethical
deliberation by those lawyers who refer to them for assistance in solving
Hodes was referring to the 2002 Professional Reform Initiatives primary goal in the US to
encourage honesty and truthfulness among US lawyers.
1083
See, eg, Rhode, above n 151 (speaking about the American Bar Associations Model
Rules of Professional Conduct and perhaps also the state professional ethics codes and
arguing that bar ethical codes are not an adequate source of guidance....end up reflecting
too high a level of abstraction and too low a common denominator of conduct.).
1084
Wilkinson, Walker and Mercer, above n 472, 647 (citing Loder, above n 42, 318).

10
1085
specific problems. This view is consistent with the issues associated
with disciplinary codes based on positive morality as discussed in Chapter 2.
The Ontario, Canada study, discussed in Chapter 2, is important in providing
a perspective into the legal regulation reforms proposed in this section. At best, the
study confirms that legal regulation and ethics codes, at least in the Ontario, Canada
jurisdiction, do play a role in shaping lawyer behaviour in resolving ethical issues. At
worst, it sheds light that while legal ethics codes may play an explicit or implicit role
in helping lawyers resolve some ethical dilemmas, they are certainly not the main
driver in ensuring an integrity-based system of lawyer conduct.
The three recommended legal regulation reform proposals presented
below take these observations into account in addressing the potentially
deceptive behaviour of lawyers in negotiations.
7.3.1 Proposal 1 Formally Recognise /egotiation as a Process

Separate from Litigation or other ADR Mechanisms
The first legal regulation reform proposal recommends a modest clarification to
the legal ethics code. As established in previous chapters, negotiation is widely
recognised as the quintessential skill of an effective and successful lawyer. Also as
established in previous chapters, not all lawyers are engaged in legal work, such as
document preparation, that involves negotiation. As courts, judges, and clients continue
to seek more non-adjudicated resolutions and agreements to their legal issues and as
the legal profession becomes more global with complex, multi-party issues and deals,
negotiation will continue to evolve into a dominant legal dispute resolution process and
be the foundation of other alternative dispute resolution processes such as mediation and
arbitration. Furthermore, a review and analysis of legal ethics codes
1085
Ibid. See Chapter 2, Section 2.5.4 (Research on Legal Ethics) for more information on this study.

undertaken in Chapter 4 indicates that, while lawyers negotiate on a daily
basis, the professional bodies that regulate lawyer conduct do not
necessarily regard lawyer-negotiators in the same way that they regard
lawyers as mediators, arbitrators, or judges. The distinction here is critical.
One can negotiate in the sense of an action verb, to negotiate. However,
one can also be a negotiator in the sense of the noun, negotiator. The legal
profession, lawyers, and clients recognise that lawyers may and do negotiate;
however, they do not seem to fully recognise that lawyers may serve as
negotiators, much like lawyers serve as advocates, mediators, arbitrators, or judges
1086
at various points in their legal career. To date, most legal ethics codes formally
recognise that there are certain rules for when a lawyer serves as an advocate,
prosecutor, third-party neutral (arbitrator or mediator), or judge. This same
distinction is not formally recognised when a lawyer serves as a negotiator.
This first legal regulation reform proposal is to formally recognise that a
lawyer is a negotiator and to more formally recognise this function in the legal ethics
codes. This requires a slight amendment to the legal ethics codes at the national and
jurisdictional level. This can be most easily accomplished by adding a section to the
legal ethics codes, entitled Lawyer as Negotiator or Lawyer Serving as Negotiator.
1086
See, eg, Anthony T Kronman, Living in the Law (1987) 43 University of Chicago Law Review 834,
840 (discussing the distinction of task and function between those involvements and activities that
constitute his character or personality, on the one hand, and those, on the other, that do not, between
those that make someone the person he or she is and those one merely has or does.) (italics in the
original). See also White, above n 60, 929 (who acknowledges that the American Bar Association is
finally moving in the right direction by acknowledging negotiation as a separate process). Despite
Whites observation, the ABA has not fully realised their intended vision because of imbedding the role
of negotiation and negotiators into one of the most controversial rules of the Model Rules of
Professional Conduct, namely Rule 4.1. This is unlike the more direct and conspicuous approach taken
by Canada as discussed more fully in Chapter 4. I would argue here that in the lawyers case, the
lawyer is a negotiator on a daily basis and this does shape his character and personality within the legal
system and affects the perception of the legal profession by the way he functions as a negotiator.

1087
This is a modest change that clarifies the lawyers role and does not run afoul of
potential concerns that such an amendment would infringe on any other ethical
duties. In fact, as the Ontario, Canada legal ethics code survey showed, lawyers do
positively consult the professional ethics codes for clarification of their roles and
obligations, even if they do not find specific guidance on a particular ethical dilemma.
The benefit of this first legal regulation reform proposal is two-fold.
The first benefit of this legal regulation proposal is that it formally recognises
what has been informally known by clients and the profession as a whole, that by and
large, what most lawyers do consistently and continually on a daily basis is to
negotiate on behalf of their clients best interests, whether internally among their
1088
colleagues, externally with opposing counsel or through third parties. At best, this
formal recognition could establish the distinction between lawyers as negotiators and
their other professional roles and obligations within the legal system. The silent
treatment currently given to negotiations in legal ethics codes can, by adopting this
reform proposal, have an explicit voice that prevents lawyers from concluding that
certain negotiation behaviour, namely deception, is acceptable. On the other hand,
the clarity may also cause conflict if that clarity contravenes acceptable negotiation
practice, community standards, or case law. This is not to say that community
standards or negotiation principles are not viable; however it is to stress that the legal
profession can take this opportunity to clarify professional standards related to
negotiation relative to any conflicting community standards, including whether the
use of potentially deceptive or misleading practices is permissible by lawyers. Any
1087
Wilkinson, Walker and Mercer, above n 472, 656-657.
1088
Chart, above n 899, 178-179 (Negotiation is therefore an inevitable and major part of
what lawyers do, in terms both of the significance of their negotiation efforts for clients, and
the amount of time they devote to it.).

conflicts that arise can and should also be addressed as soon as possible within
the ethics codes to ensure further clarity on the role of lawyer as negotiator.
A second benefit of this legal regulation proposal is that it can address
the questions and perceptions related to of whether lawyers are professionals or
simply consultants and business people who pursue the profit motive above
their duty to serve the public interest. As Loder and Morawetz, among others,
have pointed out, those who enter law school and the profession enter with a
moral predisposition that might only be further accentuated through law school
1089
training. If this is the case, most future lawyers as law students would see
1090
very little value in professional ethics courses. This seems to be further
reinforced by the fact that, at most law schools, professional ethics education is
1091
relegated to a single second-level required or elective course.
Collectively, what this seems to indicate is a pattern where incoming lawyers
see ethics as a personal choice to be made by the individual, not a choice imposed
by external rules as in the case of legal ethics codes. The tension is between the
individual lawyer exercising his/her own personal sense of what is right and wrong
and the professional obligations as codified under the legal ethics codes since,
generally, the notion of ethics itself...presumes that persons are autonomous moral
1092
agents.
1089
See, eg, Loder, above n 42, 333; Morawetz, above n 481; Zacharias, above n
481, 386. 1090 Moliterno, above n 453, 259.
1091
See generally Moliterno, above n 453, 259 (comparing the teaching of professional
ethics among four well-known and top-ranked law schools and its impact of preparedness
in dealing with ethical problems).
1092
Wilkinson, Walker and Mercer, above n 472, 648-649 (quoting Ladd, above n 19, 105.) See also J
Honsberger, Legal Rules, Ethical Choices and Professional Conduct (1987) 21 Law Society Gazette
113 (stating that codes of conduct are at odds with most notions of ethics, which involve personal
choice, not rules imposed by external agents). Cf W William Hode, Rethinking the Way Law is Taught:
Can We Improve Lawyer Professionalism by Teaching Hired Guns to Aim Better?

10
The key point here and the central issue to be addressed by this first legal
regulation proposal is that when individuals, exercising their own personal ethics
prior to entering law school, become law students and subsequently enter the
legal profession, they cease being independent moral agents and must, at least
within their professional capacity, have the skills to make ethical decisions
consistent with the intent and purpose of the legal ethics codes. They may also
need to discern and balance a course of action that is consistent with their
personal morals and professional ethics. To the extent that they lack proper moral
reasoning skills or the ethics codes are silent on the prescribed code of conduct,
lawyers as professionals may have no choice but to revert to their personal ethics
or the prevailing ethical views for guidance. This guidance may directly conflict
with perceived professional obligations and duties. In the case of lawyers as
negotiators, bringing clarity to the minimum standard of behaviour expected by
lawyers in negotiation can only benefit the profession.
An example of how this proposal can be easily integrated into the current legal
ethics codes, as presented and discussed in Chapter 4, is Chapter 11 of the Law Society
of Albertas Code of Professional Conduct in Alberta Canada, which formally and
progressively recognises that certain ethical obligations do apply when lawyers serve in
1093
the capacity of negotiators. The Law Society of Albertas Code of Professional
1094
Conduct also addresses the issue of law as a business in Chapter 8.
Chapter 8 explicitly recognises the significant business aspects of the practice of law
(1998/1999) 87 Kentucky Law Journal 1019, 1046-1049 (describing Notre Dame Law Schools ethics
programme in the United States, where law students are encouraged to establish their own personal
standards of professionalism and to face up to the difficult choices that a life in the law can bring.).
1093
The Law Society of Alberta Code of Professional Conduct, above n 687, 11-1.
1094
The Law Society of Alberta Code of Professional Conduct, above n 687, 8-1
(Statement of Principle).

by requiring lawyers to comply with the highest standards of business ethics in this
1095
aspect of the profession. However it also clearly and unambiguously relegates the
business aspect of practice to its primary role, stating that [a]t all times, however, the
1096
lawyer remains a professional and has an obligation to behave as such.
In summary, the inclusion of a separate section on lawyers as negotiators
is an explicit and timely recognition by the Alberta legal jurisdiction that not only
is the Alberta legal jurisdiction cognisant that deception might be considered a
generally acceptable negotiation practice but that lawyers practicing as
negotiators within Albertas jurisdiction are barred from using such deception and
are expected to uphold the highest standards of honesty and integrity, even as
negotiators. The message is consistent, clear, unambiguous, and obligatory,
upholding the highest standards of professional conduct even at the lowest level
of a lawyers function or task.
7.3.2 Proposal 2 - Establish Consistency within Legal Ethics

Codes Regarding /egotiation Behaviour
The second legal regulation reform proposal involves establishing consistency
within the legal ethics codes regarding the appropriate behaviours expected of legal
1097
professional, especially with regards to deception in negotiation.
One of the most consistent and important criticisms of addressing the issue
of lawyer deception in negotiation is that the inconsistency regarding conduct in
negotiation within the legal ethics code potentially leads to even more confusion and
1095
Ibid.
1096
The Law Society of Alberta Code of Professional Conduct, above n 687, 8-1
(Statement of Principle), Commentary G.1.
1097
Michael D Daigneault and Jack Marshall, A House Divided (1997) 44-MAY Federal Lawyer
18 (It is also clear that many attorney conduct rules applied to negotiations, particularly those
modelled after Rule 4.1, are insufficient and ineffective. To appropriately moderate attorney
conduct in negotiation settings it would appear that we should at least establish clear rules and
guidelines specific to the uniqueness of legal negotiation settings.).
10
1098
inconsistency in lawyer conduct. This can result in inconsistent
behaviours among those using and interpreting the legal ethics codes. One
way to create consistency within the legal ethics code is to remove the
offending phrases within the legal ethics codes so that a consistent message
is retained and communicated regarding expected behaviour.
For example, Rule 4.1 of the ABA Model Rules has often been criticised as
making an exemption for deception in negotiation and thereby creating a slippery slope in
terms of condoning deceptive conduct. Critics argue that Rule 4.1 is in direct
contravention of the ABA Model Rules Preamble, which requires honesty in
1099
negotiations. A relatively simple solution to this inconsistency is to adopt this proposed
reform and remove the inconsistency in the legal ethics code of the American Bar
Association. This may be done in several ways as recommended below.
One way to create consistency is to remove the problematic phrase in the
comment to Rule 4.1 that refers to generally accepted conventions in negotiations.
This would mean that the only reference to negotiation would be in the Preamble
and would apply across all rules. In turn, this would mean that lawyers would be
subject to the goals of the Preamble with regards to negotiations and must strive to
conduct such negotiations with honesty and integrity.
A second way to create greater consistency within the legal ethics code might
be to remove any reference to negotiations in the Preamble of the ABA MRPC. By
doing so, lawyers would be held only to the standard of Rule 4.1. This is likely to be
1098
See Chapter 4 (Efforts by Legal Ethics Codes to Regulate Deceptive Behaviours in
Negotiation) for more discussion on various legal ethics codes and a comparative analysis of
how they address the issue of deception in negotiation.
1099
Model Rules of Professional Conduct (MRPC), Rule 4.1, comments; Model Rules of
Professional Conduct (MRPC), Preamble; Thurman, above n 148.

a controversial approach because the comment to Rule 4.1, on its face,
appears to condone deceptive or misleading conduct by lawyer-negotiators,
a concept which would likely run afoul of the high standards of professional
and personal conduct expected of those in the legal profession and as
expressed in other rules of the ABA MRPC.
A third, potentially middle-of-the-way approach, to create greater consistency
in the legal ethics code involves two phases. A precursor to this approach is the
understanding that there is an interdependent relationship between law and morality
and negotiation is one key dispute resolution mechanism where this intersection is
1100
more readily evident. In the first phase of this compromise approach, the
provision of the Preamble of the ABA MRPC could be retained along with a proviso
or footnote referring to certain key cases where the common law courts have held
certain negotiation practices in certain jurisdictions as being permissible, such as
puffing or bluffing on the final settlement figure.
The second phase of this compromise approach involves amending the
comment to Rule 4.1 so that it is consistent with the message of the Preamble. This
would ensure that if references to negotiation are included within the Preamble and
the comment to Rule 4.1, such references are consistent in content and meaning.
To be sure, exceptions to the professional ethics obligation of honesty,
trustworthiness, and fairness for every lawyer should be explicitly stated in the legal
ethics code and not left to the whim of those interpreting general and relatively
limitless phrases such as generally acceptable negotiation conventions without an
empirical, legal, or evidentiary basis for so doing.
1100
See, eg, Honor, above n 115 (discussing the importance of understanding the
integration of law and morality as it affects the development and implementation of rules).

10
The benefits of this second legal regulation reform proposal towards
greater consistency within a code of professional ethics are numerous. They
include a greater chance of consistency in behaviour, a clear and achievable
standard of behaviour for the profession, a measurable standard for those
who might violate the particular provisions of the ethics code, and a gauge by
which to teach negotiation ethics in a clear, consistent approach.
7.3.3 Proposal 3 Dissolve the Materiality Requirement for

Facts and Law in the /egotiation Context
The third legal regulation reform proposal recommends a modest change to
the legal ethics codes to take into account the nature of the negotiation process.
Generally, law and the rules and legal ethics codes which support the
application and enforcement of legal regulations work under the legal and ethical
1101
obligation to disclose only materially relevant documents and information. This
requirement, termed the materially relevant requirement in this section, is intended
to ensure that all parties have knowledge of facts and law that is materially relevant
to resolving the dispute. What is materially relevant is not always defined, either in
case law or in the legal ethics codes. However, at least one U.S. court has defined
material facts as those which, if known to the client, might well have caused him,
1102
acting as a reasonable man, to alter his proposed course of conduct.
In addition, what is considered materially relevant to one party may or may not
be the case for the opposing party or third parties having an interest in the dispute. In the
case of negotiations, a generally private process, what is considered materially
1101
Behaviours in Negotiation) for a discussion of some of these provisions.
1102
Lerman, above n 60, 686 (quoting Spector, 361 F.Supp. 30, 40 (S.D.N.Y. 1972), modified
on other grounds, 485 F. 2d 474 (2d Cir. 1973).

relevant by the courts may be downright irrelevant in getting a good negotiated
1103
agreement or resolution to the dispute. It appears that the materially
relevant requirement is based on the assumption that one side should only
have to disclose what is absolutely necessary to win their case, whether facts
or law. Each side can thus hide or are not required to disclose shades of grey
information or information which may be in the other partys best interests
unless it is intentionally disclosed, found out by the opposing party, or revealed
in court. This is the crux of the adversary system, to protect one clients
interests and zealously defend their case against another client.
Negotiation, however, is a critical and important process that encourages and
relies, in part, on full disclosure of all facts and law in order to reach a resolution to the
dispute. One of the hallmarks of why negotiation is successful is because of the flexibility
and opportunity to be fully open and honest about each partys underlying interests and
to disclose any information without fear that such information will be used against either
1104
party. The goal of the good outcome in negotiation as discussed by Bordone and
1105
other scholars depends not on revealing only what is materially relevant but also on
disclosing anything which might aid in resolving the dispute to each partys relative
satisfaction. I use the term relative in reference to satisfaction here because each party
generally comes to a negotiation with different requirements and interests and the
satisfaction of these terms and interests are specific to the negotiating party. At its worse,
the materiality requirement as applied to
1103 1104
See, eg, Mize, above n 66, 247 (arguing that negotiation is different from other contexts). See,
eg, Mize, above n 66, 246-247 (discussing some of the benefits of negotiation over other
processes); Lewicki et al, above n 25.
1105
Bordone, above n 96, 16-18. See also Fisher, above n 98, 107-08; Bruce Patton, Negotiation in
Michael L Moffitt and Robert C Bordone (eds) The Handbook of Dispute Resolution (2005) 285-286.

negotiation invites competitive, distributive bargaining tactics of which
deception is a central strategy.
The recommendation of the third legal regulation reform proposal is to
dissolve the materially relevant requirement for negotiations, allowing lawyers to
conduct the negotiation with the obligation or option to disclose all facts (and law
if relevant) necessary to ensure an effective, durable, and just agreement that
brings about resolution of the dispute. The materially relevant requirement may
be efficient in a court of law or arbitration that is constrained by court rules, rules
of evidence, and costs; however, it is likely inefficient and unnecessary in the
context of a negotiation, where parties may be well-resourced, well represented,
and must have sufficient trust and disclosure to not only ascertain the truth but to
1106
also reach a good outcome consistent with the interests of justice. Amending
the materially relevant requirement as it applies to negotiations so as to
completely dissolve this requirement or to allow for the obligation of revealing all
facts (and law, where needed) would have two primary benefits.
The first benefit of this third legal regulation reform proposal is that it would
ensure that lawyers, as negotiators, are able to work on a level playing field with those
1107
clients who would choose to be self-represented or represented by a non-lawyer.
A self-represented person also has an interest in the outcome of the negotiation while a
non-lawyer is someone who is not a qualified and registered lawyer. Removing the
materiality requirement also removes the internal conflict created by deliberating what
can and cannot be revealed. It might also allow for greater cooperative or mixed-
1106
Carol Bowen, Reconciling Truth and Efficiency (2008) Update 6-7. Update is a
publication of LEADR Association of Dispute Resolvers.
1107
Mize, above n 66, 248 (arguing that the same standards should apply to lawyer-
negotiators as non-lawyer negotiators).

motive negotiations where deception (or strategic posturing) does not
have to be a generally accepted modus operandi of negotiations.
A second benefit of this legal regulation reform is that it allows lawyers as
negotiators to have greater leeway in zealously representing their clients and
their clients interests within the bounds of the law. This proposal does not take
away zealous representation of clients. It does, however, expand the scope of
effort and resources available to the lawyer as negotiator in assisting his or her
client to reach an agreeable resolution to the dispute that also has the greatest
potential to maximise the benefit to both parties. It also addresses criticisms that
lawyers hide behind the materially relevant requirement as a means to retain the
upper hand and be too adversarial. Finally, it would address the concern and
perception that lawyers are deceptive or not fully forthcoming due to the legal
ethics rules and the justifiable excuses by lawyers based on these rules.
In the best case scenario, amending the materially relevant requirement
may increase the chances of greater candour and greater efficiency in resolving
disputes. One could argue that deception, while accepted as a normal part of
current negotiation theory, could not be as efficient and honest as cases where
deception is not an inherent part of the bargaining dance. The distinction I am
making here is between intentional deception used as strategic posturing versus
deception caused as a result of misunderstanding, misinformation, non-
information, or just simple oversight. The latter might fall under the category of
unintentional, correctable, and mitigating deception.
However, some may argue that this proposal may be hard to implement
simply because there is an engrained culture in law and negotiation that is built on an

adversarial foundation and thrives on the game of conflict. Regardless of
potential disagreements, looking at the materiality requirement as it applies, or
should not apply to negotiations, is a step towards ensuring that legal regulations
offer the best hope of effectively, consistently, and efficiently resolving disputes.
In summary, this section presented and discussed the benefits of
implementing three legal regulation reforms to address the issue of lawyer deception
in negotiation. As discussed earlier, legal regulation plays a key role in a rule-based,
positivist legal culture. At the same time, as research and current practices
demonstrate, legal regulation is only part of the solution. Legal regulation reform
requires complimentary changes in the form of ethical standard setting and
institutional design. The legal regulation policy reforms recommended above are one
part of a three-part solution to addressing the issue of lawyers potentially deceptive
conduct in negotiation. A second, equally crucial component of the tripartite solution
is ethical standard setting reforms. While the legal regulation reforms change the
letter of the law, the ethical standard setting reforms ensure that changes to the letter
of the law reflect the values the profession strives to encourage and that these values
and principles are effectively taught to those who enter the profession. Furthermore,
ethical standard setting reforms ensure that the ethics principles underlying the law
are understood and consistently practiced. The next section discusses three ethical
standard setting reform proposals.

7.4 ETHICAL STA/DARD SETTI/G REFORMS
1108
Ethical standard setting refers to ethics being at the heart of any
governance reform. In this case, the governance reform is an integrated reform of
how lawyers might negotiate as legal professionals and how codes of professional
conduct play a part in setting the standards of behaviour. Ethical standard setting can
be most easily accomplished through the establishment of ethics codes, preferably
those which are first and foremost aspirational (setting out the highest ideal of public
service) while containing disciplinary elements (imposing sanctions on those that fall
1109
unacceptably short). In addition, ethical standard setting can go further and
ensure that such ethics codes have weight and meaning and are living embodiments
1110
of the values it proposes to uphold. The ethical standard setting reform proposals
presented in this section are aligned towards the goal of fully integrating the highest
possible moral compass amongst legal professionals, especially with regards to the
potential use of deception in negotiation.
7.4.1 Proposal 1 Establish Core Values Across the Legal

Profession Regardless of Function
The first ethical standard setting reform proposal involves explicitly defining the
core values of the legal profession as whole, regardless of function or jurisdiction.
As discussed above, lawyers play a variety of roles in the course of their
practice. In this thesis, role is synonymous with function, meaning that a lawyer
1108
Preston, Sampford, and Connors, above n 1078, 5 (explaining ethical standard setting
as creating codes of conduct and trying to get relevant players to abide by them.).
1109
Preston, Sampford, and Connors, above n 1078, 174.
1110
Preston, Sampford, and Connors, above n 1078, 164 (arguing that [e]thical norms are primarily
and essentially positive proscriptions. Ethics is not primarily about what you should avoid but what you
should seek to achieve.). In many ways this might apply to other professions, but law appears to be
driven by more negative proscriptions on what you should not do and this same thinking is used in
ethics codes (i.e. they are seen as rules that elicit punishment and not as positive aspirations of what
you should attempt to achieve as a legal professional in any particular setting.).

may be acting in a variety of functions in order to serve clients. These
functions include serving as negotiator, advocate, mediator, arbitrator,
prosecutor, and judge. As discussed in detail in Chapter 4, the expected and
minimum standard of behaviour for each of these key roles is generally
1111
defined in the legal ethics code of the relevant jurisdiction.
In recent years, and this may be the prevailing yet unexpressed feeling for
many years, there has been increased literature and consensus among practitioners
and scholars that changes in how law is perceived as a profession have resulted in a
1112
marked decrease in retaining the core values of the profession. Some of these
changes include a greater globalisation of the profession, an increased focus in law
as a business rather than a profession, a greater profit motive amongst the largest
firms combined with less focus on pro bono or public service work, increased billable
hour requirements, lamentable rates of health issues among those in the legal
profession, and a loss of the core values that are the foundational and guiding
1113
principles of the legal profession. Certainly, if one were to believe the consumer
studies of the Gallup organisation and the American Bar Association in the United
1114
States as well as similar studies in Australia as discussed in Chapter 6, the legal
profession has been in a state of crisis at least over the last ten (10) years.
Globalisation of the legal profession has been a key contributor to the perceived
erosion of values. It has been argued that the aspects of professionalism,
1111
Behaviours in Negotiation) for more information on this topic.
1112
See generally, Kronman, above n 547; Kirby, above n 677; Bok, above n 547.
1113
Rhode, above n 151. See also Deborah L Rhode, The Profession and Its Discontents
(2000) 61 Ohio State Law Journal 1335; Kirby, above n 677; Berkovic, above n 963, 2;
Merritt, above n 560, 2; Bok, above n 547, 1.
1114
Please see Chapter 6, section 6.7 (name of section) for a detailed discussion of
these various consumer studies.

1115
such as collegiality, loyalty to the profession, and public service, that are so
critical to the profession of law and the promise of the law have been brushed aside
in favour of the business of law, creating all manner of tension within and outside of
1116 1117
the profession. Globalisation of legal practice has also played a part in the
evolution of multidisciplinary practices and an increased use of technology and ADR
in the legal profession. Greater scrutiny and heightened discussion about the impact
of such external forces and events upon the internal stabilizing values that guide the
1118
legal profession is necessary. Now more than ever, such heightened awareness
needs to be cross-jurisdictional and global.
One way to address the concerns of market-based lawyering,
globalisation, and an erosion of professional standards is to implement this first
ethical standard setting reform by formally and clearly establishing core values
across the broad spectrum of activities within the legal profession. Today, the
legal ethics codes seem to implicitly identify at least four core values of the legal
profession serving the public interest, zealous representation, honesty, and
fairness. However, these are not consistent across legal ethics codes, certainly
1119
not across the legal ethics codes which were the focus of this thesis.
1115
See, eg, Davis, above n 171, 342-343.
1116
See, eg, Davis, above n 171, 342; Postema, above n 160; Merritt, above n 560, 63-89; Carrie
Menkel-Meadow, Ethics, Morality and Professional Responsibility in Negotiation in Phyllis Bernard
and Bryant Garth (eds), Dispute Resolution Ethics: A Comprehensive Guide (2002) 119-146.
1117
Note: This includes the Australian legal professions move towards reforms to foster
national legal practice.
1118
See, eg, Steven Mark, Harmonization or Homogenization? The Globalization of Law
and Legal Ethics An Australian Viewpoint (2001) 34 Vanderbilt Journal of Transnational
Law 1173 (discussing the impact of globalisation on legal ethics and the future of law
practice with a focus on New South Wales, Australia).
1119
Please see Chapter 4 (name of chapter) for further discussion on the results of
an original qualitative and cross-jurisdictional study of legal ethics codes.

This proposal recommends an explicit, visible, and penetratingly measurable
st
raison dtre for the legal profession in the 21 century. Scholars such as Preston,
Sampford, and Connors have called this the justification for why the institution
1120
exists and the values that drive that justification. In addition, these core values
are not function or task specific but apply equally across all activities of the institution.
Applied equally, the justification can provide institutional integrity to both internal and
external stakeholders, such as academic institutions, clients, and non-legal
organisations, as well as to all activities and tasks carried out by the institution. As
stated by Preston, Sampford, and Connors, [i]f we know the values we should be
furthering and what we should be doing to further them, then, we can identify a large
1121
range of activities that do not further those values. Furthermore, the legal ethics
codes can begin to align expected behaviours with those values. This would be
especially beneficial in the case of the use of deception in negotiation since
negotiation as a dispute resolution process is a clear demonstration of law
1122
intersecting with morality (values).
While it might not be possible to implement a global legal ethics code that
applies across all legal jurisdictions to all legal professionals as suggested by Hazard
and Dondi, it is possible to establish a set of core values that legal professionals can
strive towards across legal jurisdictions. These core values might represent, for
1120
See generally, Preston, Sampford, and Connors, above n 1078;
1121
Preston, Sampford, and Connors, above n 1078, 164. See also Queensland Public
Sector Ethics Act 1994 (describing some key guiding values).
1122
Daigneault and Marshall, above n 1097, 18 (In the absence of better guidelines regarding
negotiation tactics, attorneys should consider not only the legal implications but how they personally
feel about and are affected by deceptive and misleading negotiation practices, and act accordingly.
Whenever possible, attorneys need to identify and use alternative approaches to negotiation that
make the process more open, fair, ethical, and more mutually beneficial for all parties involved. Where
scholarship has failed, professional integrity may yet triumph.). In this section, I argue that a
consistent and conspicuous set of professional values can assist in this process.

example, the promise of the law as envisioned by the legal profession such as
serving the public interest, honesty and fairness in dealing with clients and
colleagues alike, and pursuit of justice within the bounds of the law. This is similar to
a constitution at the level of the profession that provides unifying values and clear
mandates which guide the legal profession regardless of geographic location,
1123
jurisdiction, function, or task. The ideal means of implementing this reform
proposal is to establish the core values and principles of the profession first, align the
ethics code or rules of law with those core values and then structure legal education,
clinical training, CLE courses, and other activities around this foundation.
One way to ensure this integration and reinforcement of core values is by
implementing the second and third ethical standard setting proposals discussed below.
7.4.2 Proposal 2 Increase CLE Courses on Ethics
The second ethical standard setting reform proposal recommends increased
continuing legal education (CLE) courses for current and future legal practitioners.
As the core values of the profession are re-established in a measurable way,
the profession can incorporate more continuing legal education courses (CLE) on ethics
and handling ethical dilemmas, particular in the case of the use of potential deceptive
1124
tactics in negotiation. The professional ethics course is taught in law schools,
though, at least in the United States, it is generally taught after the all-important first-
year core courses. In the case of the common law countries discussed in this thesis,
these professional ethics courses discuss the ethics of the profession
1123
Note: It is acknowledged that the focus of this thesis has been on the common-law jurisdiction.
However, while individual legal regulations may differ across legal jurisdiction, I argue that the core
values which guide the legal professionals work in each of these jurisdictions can be aligned. This
does not necessarily change what the law is; however, it may change how the lawyer explains,
enforces, implements, and uses the law in service to his/her client.
1124
Mize, above n 66, 248 (honesty in negotiation can be encouraged with education and
gradually changing attitudes...shift has already begun...).

primarily through memorisation of the legal ethics rules, discussion of case
law, and analysis of the ethics violation cases in the relevant jurisdiction.
More importantly, as confirmed by the research on legal ethics discussed in
Chapter 2, legal practitioners in the US and Canada appear to learn about acceptable
and impermissible lawyer conduct more through the visible actions of senior lawyers in
1125
each legal jurisdiction. It is reasonable to expect that the same could be true in other
countries such as Australia and Hong Kong. In the context of this thesis, relying solely on
legal ethics courses to teach appropriate negotiation behaviour is no longer sufficient
because negotiation today is not a regulated process and therefore not a focus of greater
1126
scrutiny. The professional body of each jurisdiction would benefit from an increased
number of required CLE courses on ethics as well as greater quality of such courses to
go beyond the current ethics rules and case law analysis. There are several ways to
implement this second ethical standard setting reform proposal.
One way to implement this second ethical standard setting proposal and increase
the quality of such CLE courses is to incorporate the discussion of comparative legal
1127
ethics codes. This means discussing the specific legal ethics rules in light of other
jurisdictions and the possible implications, for example, of following the home
jurisdictions ethics code versus that of the visiting jurisdiction. This would foster a deeper
understanding of ethics in the profession of law, the reason
1125
See, eg, Wilkinson, Walker and Mercer, above n 472, 645 (discussing a study of the use and
effectiveness of legal ethics codes in Ontario, Canada and finding that for the majority of practicing
lawyers, the legal ethics code is not necessarily the first point of reference for ethical issues).
1126
Note: I am not arguing that negotiation should be highly regulated.
1127
Laurel S Terry, U.S. Legal Ethics: The Coming of Age of Global and Comparative
Perspectives (2005) 4(3) Washington University Global Studies Law Review 463, 533 (arguing
that comparative and global perspectives will be increasingly important in US legal ethics debates,
primarily as [t]heory has significantly lagged behind the reality of transnational legal practice
issues and developments.); Geoffrey C Hazard, Jr and Angelo Dondi, Legal Ethics: A
Comparative Study (2004) (reinforcing the need for comparative legal ethics education and
discussing a comparative study of lawyers roles in a variety of jurisdictions).

for potential cross-jurisdictional differences, if any, and a continuing critical analysis
1128
and evolution of the legal ethics code. The benefit of this approach is to gradually
increase the extent to which lawyers feel confident discussing the ethical issues they
1129
face on a daily basis as well as to develop critical morality rather than being
1130
confined by role morality.
A second way to implement this second ethical standard setting proposal is to
integrate a set of moral reasoning CLE courses into the current set of CLE courses.
Moral reasoning is different from ethics courses in that moral reasoning is aimed at
developing ones judgment to the point of being considered to have good judgment
that will aid in making sound decisions when faced with ethical dilemmas.
Kronman defines judgment as the process of deliberating about and deciding
1131
personal, moral, and political problems. It is not just this basic level of judgment
that lawyers must have. Lawyers, given their professional status, must have
good
judgment, which is judgment beyond simple deduction or intuition. Kronman
describes good judgment as follows:
most clearly revealed in just those situations where the

method of deduction is least applicable, where the
ambiguities are greatest and the demand for proof most
obviously misplaced....to do something more than merely
apply a general rule with special care and thoroughness, or
1132
follow out its consequences to a greater level of detail.
1128
See, eg, Hazard and Dondi, above n 1127 (discussing a comparative study of lawyers roles in a
variety of jurisdictions); See also Amalia D Kessler, Review: Legal Ethics: A Comparative Study by
Geoffrey C. Hazard, Jr. and Angelo Dondi. Stanford: Stanford University Press, 2004 (2005)
<http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/hazard-dondi105.htm> at 9
August 2010 (reviewing Hazard and Dondis book).
1129
Parker and Sampford, above n 200 (discussing the importance of developing critical
morality in legal ethics).
1130
See eg David Luban, The Adversary System Excuse, in David Luban (ed.), The Ethics
of Lawyers (1994) 139-147 (discussing the aspects of role morality that drive lawyers and the
legal profession in the adversary system).
1131
Kronman, above n 1086, 846-848.
1132
Kronman, above n 1086, 847.

Kronman advocates for the importance of developing good judgment,
especially as related to US lawyers, because he argues that legal ethics courses in
the US seem to focus more on applying general rules than on developing a level of
professional judgement necessary to handle ethical dilemmas. Ethically ambiguous
or ethically challenging situations such as those found by Lamb and Lerman in their
1133
separate anecdotal studies are precisely those types of situations where lawyers
need to be able to do something more than just apply legal rules, determine long-
range consequences, or conduct a risk-benefit analysis. Lawyers may be skilled in
knowing the boundaries of the professional ethics rules; however, today, lawyers
need to be more skilled in the grey areas where rules and boundaries are less clear,
more ambiguous, and potentially career-threatening.
In summary, the benefit of implementing this second ethical standard
setting proposal is that lawyers will develop good judgment and be more
skilled in handling difficult ethical situations through critical morality while
engaged in role-morality tasks.
7.4.3 Proposal 3 Integrate In-depth Ethics and Moral

Reasoning Education into Law School Curriculum
The third ethical standard setting reform proposal involves the
integration of in-depth ethics and moral reasoning skills into the core law
school courses. This proposal is aimed at law students and those who might
consider entering the legal profession. First, it is important to address the
difference between legal reasoning skills and moral reasoning skills as used
in the context of this reform proposal and this thesis.
1133
Lamb, above n 448, 217-234. See also Lerman, above n 60.

Legal reasoning refers to the ability to read legal rules and principles,
such as statutes and case law, find and dissect legal issues, and build a
case for the client based on the application of law to the facts of the case.
Legal reasoning skills help law students think like a lawyer in terms of legal
analysis and the technical aspects of being a legal professional.

1134
In contrast, moral reasoning as introduced earlier in section 7.4.2 refers to the
skills necessary for a legal practitioner to exercise sound judgment when faced with the
types of ethical dilemmas discussed by scholars such as Lamb and Wilkinson et al in
1135
Chapter 2. Developing moral reasoning skills is less about how to think like a lawyer
and more about how to be a lawyer, how to be an ethical lawyer, or even how to be an
honest lawyer. This is particularly important when dealing with issues such as deception
in negotiation given that this issue intersects both law and morality with multi-disciplinary
influences, such as business and economics.
Legal education in most common-law jurisdictions centres primarily
on the development of legal reasoning skills. While a legal ethics course is
now usually a required course, there appear to be two primary issues with
current legal ethics courses.
The first issue with current legal ethics courses is that such courses are
primarily a rules-based course that focuses on remembering the legal ethics rules
1136
and the application of those rules to ethics problems encountered in practice.
1134
See Chapter 7, Section 7.4.2 (Proposal 2 Increase CLE Courses on Ethics) for more
information. 1135 See Chapter 2, Section 2.5.4 (Research About Legal Ethics) for more
information on the research by Lamb and Wilkinson et al.
1136
Note: It is acknowledged that there may be legal ethics courses that are taught differently and are
more in-depth; however, the majority are still rules-based legal ethics courses. Cf Mary Keyes and
Richard Johnstone, Changing Legal Education: Rhetoric, Reality, and Prospects for the Future (2004)
26(4) Sydney Law Review 537, n 103-105 (describing the law school curriculum in Australia as
discussed in the Australian Universities Teaching Committee (AUTC) Report); Michael Robertson,

The second issue with current legal ethics courses is that the majority of law
schools in the common-law jurisdiction require only one legal ethics course over a three-
1137
or four-year legal education programme. This single legal ethics course is generally
taken as one of the last required courses in law school and consists of a cursory review
of the black-letter legal ethics rules of the prevailing jurisdiction along with some study of
1138
some relevant case law. For example, in Australia, this meets with the required
Priestley 11 subjects and is consistent with the knowledge of professional rules
1139
approach of legal ethics teaching as described by Robertson.
This knowledge of professional rules approach is also common in the

1140
United States where it has been criticised as the functional
1141
equivalent of legal ethics without the ethics.
These two issues related to the ability of current common law jurisdiction legal
ethics courses to influence ethical conduct underscore the findings of the research on
1142
legal ethics discussed in Chapter 2. To briefly summarize, in 1995, Moliternos U.S.
study of the ability of a legal ethics course to prepare graduates for handling professional
ethics issues in practice demonstrated that a single ethics course
Renewing a Focus on Ethics in Legal Education? (2008) (discussing the AUTC Report on
law schools commitment to ethics learning and describing it as patchy). This paper is on
file with the author. See also Deborah Rhode, Integrity in the Practice of Law: If Integrity is
the Answer, What is the Question? (2003) 72 Fordham Law Review 333, 340 (discussing
legal ethics education in the United States).
1137
Moliterno, above n 453, 259 (discussing the law school curricula of four leading law schools
in the United States and how they address professional ethics education). See also Keyes and
Johnstone, above n 1136, 537(discussing the nature of how legal ethics is taught in Australia as
a compulsory subject in most law schools though not necessarily as a first-year course).
1138
1139
Robertson, above n 1136, 3 (discussing the knowledge of professional rules approach).
See also Keyes and Johnstone, above n 1136, 537 (discussing the Priestley 11 requirements
and criticisms of this approach).
1140
See, eg, Moliterno, above n 453, 263-264 (describing the professional ethics curricula
at four top-rated law schools in the United States).
1141
Rhode, above n 1136, 340
1142
See Chapter 2, Section 2.5.4 (Research About Legal Ethics) for more information on this
research. A brief summary of key points that relate to this reform proposal is provided here.

without more is not sufficient to prepare legal practitioners for the rigors of handling
1143
actual ethics dilemmas. The reason Moliternos own law school (William and
Mary Law School) rated higher in graduate preparedness over other law schools in
the study is because William and Mary Law School integrates legal ethics skills
1144
education within an intensive two-year required skills program. Law students at
William and Mary Law School learn black-letter legal ethics rules as well as how to
solve ethical dilemmas in a simulated practice environment integrated with core law
1145
school courses over an intense two-year period. As applied to this thesis, issues
such as deception in negotiation are handled by teaching negotiation tactics
alongside of truth-telling in negotiation to help students understand legitimate client
1146
and lawyer considerations other than merely beating an opponent.
Second, in 1999, Schweitzer and Crosons US study on curtailing deception
in negotiation through the use of direct questions found that an ethics course did not
1147
statistically affect a respondents use of deception in negotiation. Respondents
who took an ethics course were just as likely to use deception in negotiation in the
1148
context of the study as those who did not take an ethics course.
Third, in 2000, Wilkinson, Walker and Mercer published the findings of a
Canadian study on whether legal ethics codes shape legal practice and the behaviours
1143
Moliterno, above n 453, 271 (discussing the mean scores on professional ethics preparation across
the law schools involved in the study, with William and Mary scoring the
highest). 1144 Moliterno, above n 453, 264-266.
1145
1146
1147
1148
Schweitzer and Croson, above n 326, 234 (stating that this does mean ethics courses
cannot influence behaviour though it did not prevent the use of deception in this specific
study). One perspective is that the scenario of used-car sales is a common negotiation
scenario where potentially deceptive tactics, such as bluffing and puffing, are expected.

1149
of legal professionals. They found that legal practitioners relied less on
the legal ethics codes for guidance on key ethical dilemmas and relied more
1150
on advice from senior legal practitioners or personal morals.
It is possible to conclude from the research conducted to date on the
effectiveness of legal ethics courses that it is not sufficient to simply require
law students to take a single ethics course and conclude that these future
lawyers are fully prepared for the ever-increasing ethical challenges they will
likely face in practice, especially in the slippery slope forum that is
1151
negotiations. As discussed in earlier chapters, the issue of the use of
deception in negotiation is complex and requires more than just knowledge of
black-letter ethics rules and reliance on case law. More must be done.
As discussed earlier, the foundational competencies of what it takes to be a
lawyer, not just think like one, are set in law school. Furthermore, as observed by Loder,
MacKenzie, Toulmin, Morawetz, and Zacharias among others, most students entering the
legal profession have moral predispositions that may only be further accentuated through
indoctrination into the practice of law rather than modified through legal ethics courses.
1152
This is because of the generally accepted view in society that ethics is an internal,
1153
personal choice not a set of rules to be imposed by an external group. Incoming law
students will likely face their first important ethical dilemma by attempting to reconcile
their personal ethics rules with those that will be
1149
See generally, Wilkinson, Walker and Mercer, above n 472,
645. 1150 Wilkinson, Walker and Mercer, above n 472, 678-680.
1151
See Chapter 2, Section 2.2.2 (Deception as a Negotiation Strategy) for more
information on the implications of this strategy).
1152
See generally, Loder, above n 42, 311; G MacKenzie, The Valentine's Card in the Operating
Room: Codes of Ethics and the Failing Ideals of the Legal Profession (1995) 33 Atlanta Law
Review 859, 869; S Toulmin, Ethics and Equity: The Tyranny of Principles (1981) Law Society
Gazette 240, 244; Morawetz, above n 481; Zacharias, above n 481, 231.
1153
Wilkinson, Walker and Mercer, above n 472, 648-649; See also Honsberger, above n 1092.

imposed on and expected of them through the lawyers professional ethics
rules. This must be dealt with at the foundational level by implementing this
third ethical standard setting reform proposal and integrating in-depth ethics
and moral reasoning skills education into the law school curriculum.
The most effective and long-lasting ethical standard setting reforms must be
st
aimed at bringing the current law school curriculum into the 21 century consistent
1154
with changes in global legal practice. One of the primary ways to bring the current
law school curriculum forward is to leverage Kohlbergs findings on moral
1155
development and to create a legal education environment that helps legal
practitioners move towards greater moral maturity and integrity in decision making,
especially as it relates to professional duties and obligations. This is particularly
important to addressing the issue of lawyers deception in negotiation.
Incoming law students need to be educated on the notion that, in some respects,
they need to subordinate (or at best integrate) their personal values as independent moral
1156
agents in favour of other, overarching values and obligations when they enter the legal
1157
profession, where their professional actions must be consistent with the goals and
ideals of the profession as embodied in the legal ethics code.
This tension between being an autonomous moral agent and exercising sound
judgment in fulfilling the ethical obligations of the profession cannot be reconciled
1154
See generally Chart, above n 899, 177. While Charts views are aimed primarily at New
Zealands legal education curricula, her observations, insights, and recommendations can be
applied equally to legal education in other jurisdictions.
1155
See Chapter 2, Section 2.5.4 (Research About Legal Ethics) for more information on
this topic. 1156 See Chapter 7, Section 7.4.1 (Establish Core Values Across the Legal
Profession Regardless of Function) for a discussion on the ethical standard setting reform
proposal aimed at addressing the values of the legal profession.
1157
Wilkinson, Walker and Mercer, above n 472, 648-649 (discussing the fundamental issues
and criticisms underlying professional ethics codes as conflicting with the general view that
individuals are autonomous moral agents).

within a single legal ethics course. Strictly teaching and following legal ethics rules may
actually be detrimental to a lawyers critical thinking and moral development. According
to Loder, the ethics rules create a minimum standard that prevents lawyers from
1158
reaching beyond moral mediocrity and may encourage undesirable customs and
1159
habits. In addition, the Brockman study further identified that the rules only provide
another challenge for lawyers to find ways to circumvent them given their training and
1160
propensity to hide information for a living. Rizzo further concurs by stating that
[m]orals become reduced to checking the code of professional responsibility; if the code
1161
does not prohibit an act, the act is moral. In essence, the legal ethics rules can
actually curtail moral development, cause moral apathy or expression, and create a
1162
general malaise about following the ethics rules. These issues are especially relevant
in the case of negotiation because, as observed by the comparative study of legal ethics
codes in Chapter 4, there is little to no guidance found in the legal ethics codes on how
1163
lawyers should behave in negotiations.
A practical way of leveraging Kohlbergs research on moral development in
legal education is to adopt a different perspective of teaching legal ethics. Instead of
using the current dominant knowledge of the professional rules approach to legal
ethics teaching, this third ethical standard setting proposal recommends adopting a
1158
1159
Ibid.
1160
J Brockman, The Use of Self-Regulation to Curb Discrimination and Sexual Harassment
in the Legal Profession (1997) 35 Osgoode Hall Law Journal 209, 219. Brockmans study
was about reducing discrimination. The comments by respondents about the general nature
and views of lawyers in a self-regulated profession are applicable here.
1161
P L Rizzo, Moral for Home, Morals for Office: The Double Ethical Life of a Civil Litigator
(1988) 35 Catholic Lawyer 79, 82.
1162
See, eg, Loder, above n 42, 311.
1163
Daigneault and Marshall, above n 1097, 18-19 (Negotiation is an area that the legal
community has failed to define, analyse, and codify adequately. Attorneys are left to blindly
navigate its muddy waters at their own peril.) . Despite the numerous books on legal negotiation
and legal ethics, I would argue that this statement is as true today as it was in 1997. There has
not been a significant, effective, measurable step towards providing sufficient guidance.

1164
sound judgment approach through the strategic integration of moral
1165
discourse into legal education. Two concepts are important to discuss here.
The first important concept is the sound judgment approach, which is
markedly different from the prevailing knowledge of the professional rules
approach. The goal of the sound judgment approach is to go beyond knowing
and applying the legal ethics rules to ethical dilemmas as other black-letter
courses. It is about putting the ethics back into legal ethics by developing a
process of decision-making that can be used when faced with ethical dilemmas.
This includes exercising moral judgment through moral discourse and critical
morality, practicing the use of sound judgment in solving ethical dilemmas, and
developing the ability to reconcile tensions between professional obligations as
defined in the legal ethics code and personal morals so as to effectively and
ethically execute the tasks associated with a lawyers professional obligations.
The second important concept in this reform proposal is the strategic
integration of moral discourse. Similar to the difference between legal reasoning
and moral reasoning discussed at the beginning of this section, there is a difference
between legal discourse and moral discourse, though both elements are critical to
addressing multi-disciplinary issues such as deception in negotiation.
Legal discourse is generally based on an extensive review and analysis of the
facts of the case, law, holding of the case, and potential societal impact as seen through
already decided appellate case opinions. Strict legal discourse involves legal reasoning.
When legal discourse is also applied to ethics problems, the result is
1164
The sound judgment approach is paraphrased from Robertsons judgment
approach. See Robertson, above n 1136, 3-4.
1165
See, eg, Robertson, above n 1136, 4 (supporting the use of this approach for legal
ethics education in Australian law schools).

10
1166 1167
legalism of ethics, where ethical lawyering is simply a matter of following rules.
This legal discourse is based on reductionism in that it is a definable way of knowing
1168
and speaking about the world where the world of legal education and the world of
1169
lawyers are seen by some as bound worlds that do not necessarily mirror or
1170
complement each other. This means that what is up for debate is very narrow,
bound, defined, and controlled through rules and regulations which allow for legalistic
discussions. Legalistic discussions only allow for what is (e.g., evidence) and do not
necessary allow for what ought to be (e.g., value judgments or intuition).
In contrast, ethical discourse is one in which we engage our students
in dialogue about what it means to be a good lawyer, the nature of
professional responsibility and the role of their own ideals in their professional
1171
development. I would also argue that moral discourse needs to include
1172
ethical reasoning based on principles of logic. Keeping the above
distinctions in mind, there are two primary recommendations to adopt and
integrate moral discourse into the current law school curriculum.
The first recommendation for integrating moral discourse into the current law
school curriculum is to include a required ethics and moral reasoning skills component
in every core and non-core law school course, such as constitutional law,
1166
Judith Shklar, Legalism (1964) 1.
1167
James R Elkins, Moral Discourse and Legalism in Legal Education (1982) 32 Journal of Legal
Education 12, 19. Note: This is not to say that following rules is improper but to stress that ethics
issues cannot be wholly distilled to following ethics rules. See, eg, Lamb, above n 448, 217-234
(discussing the Australian perspective); Wilkinson, Walker and Mercer, above n 472, 645 (discussing
the Ontario, Canada perspective); Daigneault and Marshall, above n 1097, 18 (discussing the United
States perspective on rules, or lack thereof, to assist in ethical negotiation).
1168
Elkins, above n 1167, 13.
1169
Elkins, above n 1167, 15 (citing Scott Turow, One L (1977)).
1170
Ibid. Elkins does make the qualification that there is no longitudinal study of whether
legal education paves the way for legal practice; however, there is ample criticism of this.
See, eg, Chart, above n 899, 177.
1171
Elkins, above n 1167, 14.
1172
See, eg, Luban, above n 1130, 169-178.

property law, criminal law, contracts, equity, ADR courses, and intellectual property
law. While it is acknowledged that some law schools might already adopt this
approach, it is not the norm. This first recommendation is to more formally adopt an
integrated approach to ethics and moral reasoning skills development so that the
lawyers of tomorrow become so as a direct result of the legal education they
1173
undertake today. For example, Luban encourages the use of applying logical
arguments to ethical dilemmas using moral discourse to determine possible courses
1174
of action. In the context of the issue of lawyer deception in negotiation, students
1175
may enter law school as honest lay persons with a strong personal ethic against
deception and leave as future lawyers who understand that deception is a necessary
part of negotiation because they do not hear otherwise and the legal ethics codes do
not provide sufficient guidance. Formally integrating ethics and moral reasoning skill
training will address this gap so that lawyers are able to discern between ethically
ambiguous choices, such as whether to use deception in negotiation.
One option for integrating moral discourse into the current law school
curriculum through ethics and moral reasoning skills development is by adopting
an approach similar to the one used by William and Mary Law School in the United
1176
States as discussed earlier in this section. A similar approach is also used by
Vermont Law School, also in the United States, the difference being that while
1173
Felix Frankfurter, cited in Rand Jack and Dana Jack, Moral Vision and Professional Decisions: The
Changing Values of Women and Man Lawyers (1989) (In the end, the law is what the lawyers are.
And the1174
law and the lawyers are what the law schools make
them.) Luban, above n 1130, 169-178.
1175
See the discussion above about Kohlbergs stages of moral development and its
impact on an individuals moral development as they progress through law school. This
again is another rich area for research.
1176
See also Chapter 2, Section 2.5.4 (Research on Legal Ethics) for a detailed
discussion of Moliternos study and the approach used by William and Mary Law School
for legal ethics skills training); Moliterno, above n 453, 259.

William and Marys program is mandatory, Vermont Law Schools General Practice
1177
Program (GPP) is voluntary and restricted to a select group of students. In
Australia, the Queensland University of Technology is recognised as one of first law
schools to embrace the challenge of integrating legal and generic skills training with
traditional legal theory and black-letter law training by adopting a a co-ordinated and
1178
incremental approach to developing...knowledge and skills. These types of
programmes ensure that substantive law and ethical issues are addressed together.
A second option for integrating moral discourse into the current law school
curriculum through ethics and moral reasoning skills development is to increase the
number and quality of clinical practice programmes that are required during ones
legal education and to fully integrate these programmes into the core and specialised
1179
law school curriculum. The purpose of these clinical practice courses is to
integrate theory with practice and to continually reinforce not only basic legal skills of
proper research, writing, case analysis, legal reasoning and argument but to also
consistently reinforce the proper negotiation and ethics aspects of nearly every legal
1180
issue, whether it is in a criminal or non-criminal context. The benefit of this type
1177
Note: Comments on Vermont Law Schools General Practice Program is based on
personal experience.
1178
Keyes and Johnstone, above n 1136, 537 (discussing the law curriculum changes and approach
used by Queensland University of Technology among others); Sharon Christensen and Sally Kift,
Graduate Attributes and Legal Skills: Integration or Disintegration (2000) 11 Legal Education Review
207; Sally Kift, Harnessing Assessment and Feedback to Assure Quality Outcomes for Graduate
Capability Development: A Legal Education Case Study (2000) (Paper presented at the Australian
Association Research in Education Conference); Rachel Spencer, Teaching Legal Skills at Flinders
An Integrated Practical Legal Training Program (2003) 6 Flinders Journal of Law Reform 217.
1179
Cf Condlin, above n 43 (providing a good historical account of how clinical education was
introduced into the mainstream of legal education and arguing that the current clinical legal education
program, especially in the area of legal ethics, fails to guide students properly in dealing with the most
common ethical dilemmas faced by practitioners). I would agree with Condlin in regards to legal ethics.
I disagree about its failure in total and argue that it can certainly be improved.
1180
I use the terms criminal and non-criminal context in reference to Kronmans argument that perhaps
legal ethics may be different in criminal context as opposed to non-criminal contexts because they

of structure is to prepare law students to be effective, ethical, and contributing lawyers
and to engrain them in a legal culture that is consistent with practice, consistent with the
values of the legal institution, and consistent with the goals of the justice system in
1181
serving the public even as it serves both business and personal interests.
For example, given the prevalence and mandatory use of alternative dispute
resolution (ADR) mechanisms in practice, ADR courses, along with the courses
discussed under the ethical standard setting section, should be considered core subjects
and required for every graduating law student and those entering the profession. These
ADR courses should be considered core subjects because incoming law students need
1182
to be indoctrinated in seeing a clear and complete dispute resolution continuum from
conciliation to court (or as I would call it, conversation-to-litigation) in terms of dispute
1183
resolution options in the practice of law.
The second recommendation for integrating moral discourse into the current
law school curriculum is to develop a new legal ethics curriculum that consists of two
primary components taught in the first year of law school where foundational skills
are established. These two components consist of the following: 1) a course in logic
and reasoning; and 2) a course on comparative legal ethics with a focus on the legal
ethics code of the prevailing jurisdiction. Each component of this second
recommendation is discussed in further detail below.
serve different interests. This is one way of looking at the issue of negotiation and legal ethics. See
generally Kronman, above n 1086, 834.
1181
Eyster, above n 977, 756-757 (Only by making fundamental changes in the way we view our
professional roles, and in the way we educate our professionals, can we achieve a satisfactory
solution to the presently intractable dilemmas posed by common negotiation practice).
1182
See, eg, Chart, above n 899, 192-195 (defining acculturation as absorbing particular values and
ways of responding to conflict; acquiring a professional--and ultimately a personalidentity and
arguing that the acculturation process occurs not only through what we teach, but how we teach it and
what we reward in our students.)
1183
See Chart, above n 899, 191.

The first component of a new legal ethics curriculum involves a course in
logic and logical reasoning, to be taught in the first year of law school. The
course in logical reasoning includes both inductive and deductive reasoning
1184
skills. Logical reasoning skills are specifically designed to assist in
recognising and using inductive reasoning, deductive reasoning, abductive
reasoning, defeasible reasoning, legal fallacy, and logical argument. Because
1185
logical reasoning is extracted from various disciplines, it allows legal and non-
legal arguments to be based on a multi-disciplinary approach. This is invaluable
given that in the course of legal practice, lawyers must engage and negotiate with
various disciplines in establishing their clients case. This type of logical
reasoning skills can also be used in dealing with ethical dilemmas to look more
closely at some of the morally and ethically ambiguous situations that a future
lawyer might find themselves in both on a personal and professional level.
For example, Chapter 2 introduced Lambs anecdotal study that resulted in a
set of approximately forty (40) real and practical ethical dilemmas that Australian
1186
lawyers face in the course of their practice in Queensland, Australia. Both Wetlaufer
and Lerman also discuss negotiation-related ethical issues, including the use of
deceptive tactics, faced by lawyers in the United States, and ways which these lawyers
1187
dealt with these issues. In addition, Wilkinson, Walker and Mercers study of the use
and effectiveness of legal ethics code in the Ontario, Canada jurisdiction includes a rich
set of mini-transcripts of over 100 ethical scenarios faced
1184
See, eg, D Q McInerny, Being Logical: A Guide to Good Thinking (2005); Anthony
Weston, A Rulebook for Arguments (2008); James H Kiersky and Nicholas J Caste,
Thinking Critically: Techniques for Logical Reasoning (1995).
1185
See McInerny, above n 1184, ix, 26-30 (discussing the basic principles of logic);
Weston, above n 1184, Kiersky and Caste, above n 1184.
1186
Lamb, above n 448, 217-234. See Chapter 2 (Review of Literature) for a more detailed
discussion. 1187 Wetlaufer, above n 31; Lerman, above n 60.

1188
by lawyers in the Ontario jurisdiction. By applying the logical reasoning
skills to such practical ethical scenarios, law students and future legal
practitioners can begin to develop and cultivate good judgment.
The second component of a new legal ethics curriculum involves a course in
comparative legal ethics, to be taught in the first year of law school. The course in
comparative legal ethics is essentially an extended, modified version of the legal ethics
course currently taught in a majority of law schools as a higher-level required or elective
course after the completion of first-year core courses. The legal ethics course should be
built on the foundational teachings in logic and reasoning discussed above. The principle
advantages of this comparative legal ethics course as compared with the manner in
which it is generally taught today are two-fold. First, the comparative legal ethics course
would entail a comparative analysis of various legal ethics codes instead of only
focusing on the professional ethics code of the prevailing jurisdiction. This allows law
students to analyse the professional ethics codes of their jurisdiction in relation to other
jurisdictions in order to have greater understanding of its impact on the legal practitioner.
The second benefit of a comparative legal ethics course is that lawyers will be able apply
the logical reasoning skills to the ethical dilemmas they might face under various legal
ethics codes, including the ability to distinguish between the role-morality of their
profession, the general morality of society, and the potential conflict with their own
personal ethics. These skills are even more applicable in the negotiation context where
certain unwritten rules might apply and tactics such as bluffing, puffing, high first offers,
low-balling and other potentially deceptive tactics are considered acceptable by
negotiators in various
1188
Wilkinson, Walker and Mercer, above n 472, 657-678.

10
jurisdictions. Furthermore, these fully integrated and well-rounded skills can
be applied across all the important areas of a legal professionals life.
In conclusion, this subsection discussed the third ethical standard
setting reform proposal by recommending the integration of in-depth ethics
and moral reasoning education into the current law school curriculum.
In summary, the three ethical standard setting reform proposals discussed in
this section 7.4 complement the legal regulations reforms discussed in section 7.3.
Together, these reform proposals can work to encourage the establishment of a
consistent set of standards that can be followed by legal professionals in carrying out
their professional duties. By removing ambiguity and inconsistency and, at the same
time, providing clarity in areas such as negotiations and the use of certain deceptive
tactics in negotiation, the reform proposals to date can pave the way towards greater
harmony between thinking like a lawyer and being an ethical lawyer as well as
encouraging greater consistency between what is taught and what is practiced. The
final link, however, must be through the integration of both the legal regulation reforms
and ethical standard setting reforms into the institutions that support and regulate the
profession as a whole. This integration can be accomplished by implementing the
institutional design reforms discussed in the next section.
7.5 I/STITUTIO/AL DESIG/ REFORMS
This section deals with two key proposals for institutional design reforms. In
the context of this thesis, institutional design refers to an institutional environment that is
conducive to fostering the ideals and goals of the legal regulation reforms and ethical
1189
standard setting and compliance proposals outlined in the prior subsections.
1189
Coady and Sampford, above n 200, 11.

In looking at the ideals and goals of legal regulations and ethical standard setting,
institutional design reforms constantly ask the questions of what structure, what
design, what kinds of relationships between members of an organisation are likely to
1190
aid the institution in achieving the values that justify its privilege of incorporation
and therefore more positively achieve what it is designed to accomplish.
In the context of the legal system in general, the desired result is justice for
parties to a dispute. In the context of legal education, the goal is preparing law students
to be practicing lawyers so that they may serve the larger goal of achieving justice
1191
within the legal system through resolution of disputes. Taken one step further, the
aspired result of a negotiation is an agreement between the parties as a result of having
achieved a sense of justice and satisfaction of personal interests, termed by some as
1192
the good outcome. As discussed earlier, these goals may or may not be achievable
within the current adversarial legal system and an institutional design that fosters the
teaching of an adversarial legal system. Therefore, in order to successfully implement
the legal regulation and ethical standard setting reform proposals discussed in prior
sections, the institutional design reforms address the structural changes that must take
place within the profession, education systems, and legal systems in order to support
other integrated reform proposals.
The institutional design reforms proposed in this section are based on the
philosophy that sometimes complex issues such as lawyers deceptive conduct in
1190
Coady and Sampford, above n 200, 15 (explaining further that this also means looking
at some of the aberrations that prevent it achieving those values.).
1191
Note: This is certainly another area ripe for research in terms of clearly defining measurable goals
and outcomes of law schools and law school graduates. An example is the law graduates professional
ethics readiness survey conducted by Moliterno at William and Mary Law School in the United States.
See Moliterno, above n 453, 259. Another example is conducting incoming and exit surveys measuring
a students perceived readiness to conduct various legal skills, analysis, and writing tasks necessary for
incoming practitioners.
1192
Patton, above n 1105, 285-286.

negotiations are not individual issues but symptomatic of the institutional design,
structure, and culture in which such behaviours occur. An incremental chance in
the institutional design may encourage a monumental change in behaviour thus
creating a ripple effect on the behaviour of lawyers and the perception of lawyers
and the legal profession in the eyes of the public it is meant to serve.
7.5.1 Proposal 1 Reform the Legal Ethics Code

Enforcement Mechanism
The first institutional design reform proposal is aimed at the legal ethics
code enforcement mechanism, namely the professional bodies assigned to
the tasks of bringing ethics violation charges where a legal practitioner is
1193
alleged to have run afoul of the legal ethics code of the jurisdiction. Two
primary areas are worthy of further scrutiny and reform specifically as they
relate to a lawyers potentially deceptive conduct in negotiations.
First, assuming that the legal ethics code includes negotiation as a primary
function of lawyers as recommended in Section 7.3.1, this distinction should become
part of how legal ethics cases are heard and decided. The first part of amending the
legal ethics enforcement mechanism extends to beyond negotiation and recommends
that there be more sensitivity and analysis of ethics violation cases based on the context
of the alleged violation of the legal ethics code. By context, I am specifically talking
about the role or function of the lawyer at the time of the alleged violation. For example,
if the lawyer, at the time of the alleged violation, was a mediator, negotiator, or trial
advocate, there should be relevant standards by which his/her
1193
Rhode, above n 151, 19-20, 211 (major challenge is to build a more coherent system
that balances the needs for public accountability with professional autonomy; our current
one-size-fits-all model of legal education and professional regulation badly needs revision;
profession needs to develop more effective and accountable disciplinary structures).

conduct is measured and assessed in light of the alleged violation. This is not
to diminish the public interest standard. It is to complement the public interest
standard by ensuring that all relevant information and perspectives are taken
into account when judging whether an attorney has violated the legal ethics
code of a particular jurisdiction. This is especially important in the area of
negotiations because, as established earlier, there is a lack of consistent
1194
standards of behaviour within a jurisdiction as well as across jurisdictions.
For example, in Chapter 4, after conducting an analysis of the legal ethics
cases in Queensland where the alleged violation was deceptive or misleading
1195
conduct in the context of negotiation, the results revealed that the context and
function of the lawyer in which the alleged violation occurred was not considered and
was not a key factor in the final decision. I do not argue that deceptive or misleading
conduct should be excused depending on the context or circumstances; however, I
do recommend that this contextual factor be seriously considered in determining the
final guilt or innocence of the alleged offender as well as the relevant punishment.
The legal ethics code for Queensland, as well as most common law
jurisdictions, provide for specific punishment or set of punishments for violating the
provisions of the legal ethics codes. In the case of Queensland, for example, the
primary rationale for finding a lawyer guilty and punishing the offending lawyer is
1194
Bordone, above n 96, 3 (Though separate ethics rules exist for lawyers who mediate or arbitrate, there
continues to be no separate ethical rules for lawyers engaged in the process of negotiation...); Eyster,
above n 977, 773 (structural features designed to guarantee procedural and outcome fairness when lawyer
is an advocate are totally absent in the negotiation process); Mize, above n 66, 247 (More guidance
needs to be given on acceptable negotiating behaviour.); Daigneault and Marshall, above n 1097, 18
(Negotiation is an area that the legal community has failed to define, analyse, and codify adequately.
Attorneys are left to blindly navigate its muddy waters at their own peril.).
1195
Please see Chapter 5 (Analysis of the Success of Professional Ethical Codes of
Conduct of Queensland in Controlling Lawyers Deceptive Behaviour) as well as the charts
in the Appendices for further discussion and information on this qualitative study.

based on a protection of public interest regardless of surrounding or mitigating
1196
circumstances. In addition, while the resulting punishment seems consistent with
the provisions of the legal ethics code, the punishment, in many cases, seems
inconsistent, highly onerous and punitive relative to the offence, the function of the
lawyer at the time of the alleged violation, and the context in which the alleged
conduct occurs. There appear to be more strike-offs and punitive fines than an
1197
attempt for restorative or remedial justice measures. In the ten years of cases
studied where the alleged offence was misleading or deceptive conduct, there is
little to no information on whether the alleged violation occurred in the context of a
trial, a court appointment, a meeting or a negotiation; however, this can be
1198
discerned implicitly from a more detailed review of the cases.
A second area of reform related to the legal ethics code enforcement
mechanism is aimed specifically at clarifying the degree of severity of the offending
conduct, such as misleading or deceptive conduct in negotiations, in relation to
other violations of the legal ethics codes. First, a review of ethics violation cases
must determine if the misleading or deceptive conduct occurred in the context of a
negotiation and whether it falls within the spectrum of offending conduct. This is
especially the case if the profession continues to judge lawyer behaviour when the
lawyer is serving as negotiator under the same standards as when the lawyer is an
1196
See, eg, Mellifont (1981) Qd. R. 17 Andrews J (with the concurrence of Connolly J at 30
(The public interest calls for effective vigilance over members of the profession and its
standards of professional behaviour and great concern to ensure as well as possible that the
public may confidently place their business and affairs in its hands.); See also re Maraj
(1995) 15 WAR 12; Cf Bolton v Law Society [1994] 2 All ER 486
1197
Haller, above n 928, 70 (arguing that professional discipline imposed primarily for the
purpose of maintaining the professions reputation can cause more harm than good,
especially where it intersects with issues of trust and public perception).
1198
See Appendices for further information on these cases.

10
advocate, third-party neutral, and judge, whether explicitly, implicitly by
conduct, or by silence.
An example of the impact of not having an objective spectrum of offending
conduct in the area of misleading or deceptive conduct is most clearly illustrated by QLS
1199
Inc v Craig Stephen Bax, a case of the Court of Appeal, Supreme Court of
Queensland. The judge found that the solicitor failed to explain his actions properly, did
not display remorse, and continued with the offending deceptive conduct in a persistent
1200
manner. As a result of this behaviour, the Court of Appeal affirmed the Tribunals
guilty finding, struck the solicitor off the role of solicitors, and ordered him to pay
1201
costs. However, Pincus AJ disagreed with the majoritys decision. Pincus AJ indicated
in his dissenting opinion that dishonesty, like other forms of misbehaviour, has grades of
1202
seriousness and that the solicitor in this case had not committed the gravest
1203
form. Unfortunately for the solicitor, Pincus AJ did not elaborate on the grades of
dishonesty that fall within or outside the bounds of violating the professional ethics codes.
As a result, the aggravating factors combined with the fact that there is not an explicit list
of the grades of seriousness for dishonesty meant that the judges could only rely on the
1204
legal ethics rules and existing case law to determine the final outcome. This is not to
say that dishonesty should
1199
QLS Inc v Craig Stephen Bax [1998] QCA 089 (Craig Stephen
Bax). 1200 Craig Stephen Bax [1998] QCA 089, 4, 6-7, 13-15.
1201
Craig Stephen Bax [1998] QCA 089, 18.
1202
Craig Stephen Bax [1998] QCA 089, 13.
1203
Ibid.
1204
Craig Stephen Bax [1998] QCA 089, 13 (Pincus, JA) (it appears that what the solicitor
did was unwisely succumb to the temptation to assist, by fraudulent means, a client facing
bankruptcy. It was not suggested against him that he derived any personal benefit - except
such general benefit as may be obtained from achieving a satisfactory result for a client.).
This again highlights the tension in the duties of a lawyer as profession, the need for better
standards for assessing violations, and the importance of educating lawyers on how to
manage these issues so as to avoid ethics violations proceedings.

be fully condoned. This case is illustrative of the point made by many
practitioners and scholars that the ethics codes alone do not provide
1205
sufficient consistent guidance in adjudicating cases of this type. This is
especially so for cases involving negotiations as illustrated by the Mullins
1206
case where the barrister was found guilty of misleading and deceptive
conduct but only received a fine, a result quite inconsistent with Bax.
In summary, by implementing this first institutional design reform proposal and
aligning the enforcement mechanism of ethics violations with more consistent and
objective standards, the profession can ensure an effective and accountable
disciplinary structure that accomplishes remedial goals (e.g. education) as well as
maintaining the highest standards of the profession. The result, when measured,
should be increased positive public perception of lawyers and the legal profession.
7.5.2 Proposal 2 Adopt More Formal Mentoring and Research

Partnerships Between Professional and Educational Bodies
The second institutional design reform proposal focuses on the relationships
between law practitioners, professional organisations, and educational institutions.
The second institutional design reform proposal recommends adopting formal
mentoring and research partnerships between the profession and legal academia.
The primary area of enquiry here is whether there is sufficient integration,
interdependence, and interrelationships between major stakeholders so as to ensure
seamless development and education of future lawyers who are able to balance both
1205
See, eg, Daigneault and Marshall, above n 1097, 18; Wilkinson, Walker and Mercer,
above n 472, 645; Rhode, above n 151, 211.
1206
See Chapter 5, Section 5.9.2 for a detailed analysis and discussion.

1207
professional and personal obligations. There is a variety of criticism that law
schools do not effectively prepare students for law practice. Even in law school,
recent studies have shown that law students tend to develop or increase existing
personality traits of perfectionism, duality and competitiveness to succeed in law
1208
school. Furthermore, as these traits are carried on to professional lives,
lawyers appear to have a higher than average rate of health problems, including
1209
depression, alcoholism, and drug abuse.
This would tend to demonstrate that there is a disconnect between the academic
instruction of future lawyers and actual law practice as well as a lack of awareness within
the educational and professional environments of the real pressures affecting lawyers,
1210
especially in dealing with ethical issues. By disconnect, I mean that what one is
taught is not what one actually practices and vice versa. For example, law students may
be taught in legal ethics to always be honest and fair, yet when they subsequently take a
negotiations class or a commercial transactions class or actually practice law, a series of
events or conversations or lessons will make it clear that the
1207
See, eg, Macfarlane and Manwaring, above n 465; Craig Stephen Bax [1998] QCA 089;
Chart, above n 899, 177; Eyster, above n 977, 752; Berkovic, above n 963, 1 (stressing the
importance of the profession and education institutions to work more closely).
1208
See Berkovic, above n 963, 1. See also Keyes and Johnstone, above n 1136, 537
(discussing the central issue of law school curriculum in Australia and citing Zimmerman who
observed that the root of institutional concern [about the use of group work] lies in four
notions embedded in traditional legal education: competitiveness, teacher control,
authorship/individualism, and individualized grading); Clifford Zimmerman, Thinking
Beyond My Own Interpretation: Reflections on Collaborative and Cooperative Learning
Theory in the Law School Curriculum (1999) 31 Arizona State Law Journal 957,986; Helen
Brown, The Cult of Individualism in Law School (2000) 25 Alternative Law Journal 279, 287.
1209
Berkovic, above n 963, 1; P J Schiltz, On being a happy, healthy, and ethical member of
an unhappy, unhealthy, and unethical profession (1999) 52(4) Vanderbilt Law Review 869-
951. See also Judith McNamara, Rachael Field, Catherine Brown, Learning to Reflect in the
First Year of Legal Education: The Key to Surviving Legal Education and Legal Practice
(2009) (discussing the statistics of discontent and health problems plaguing the profession
and recommending the use of reflective practice in the law school curriculum and in law
practice as preventative measures). This unpublished paper is on file with the author.
1210
See, eg, Keyes and Johnstone, above n 1136, 537 (discussing the relationship of and
issues between legal academy and the legal profession in Australia).

way to behave is dishonestly, sometimes unfairly, and in a highly competitive manner. As
discussed in Chapter 6, the legal profession is a demanding and honourable profession
1211
yet it is also perceived as greedy and dishonourable. If lawyers are considered
analogous to doctors in terms of reputation, high professional ethics, and service to
society, why do doctors and the medical profession as well as judges fare better in
1212
consumer and industry studies of the legal profession than lawyers?
One option for addressing this seeming disconnect between the various
stakeholders of the legal profession is by engaging in greater empirical research of
lawyers, lawyer behaviour, and the legal profession so that the profession could
1213
benefit from the findings of relevant research. This would aid in reducing the
problems that plague the profession and the constant negative perception of the
legal profession in the eyes of the public. Out of any other professions mentioned
to date, the legal profession, charged with protecting the public interest as well as
their clients interests, needs to lead the way to possible professional reform.
A second option for addressing this issue between the various stakeholders of
the legal profession is by creating partnerships with local law firms or community law
practices. This recommendation is slightly different from those discussed in Section
7.4.3. The ethical standard setting proposal discussed in Section 7.4.3 involved
recommendations for integrating ethics and moral reasoning training in each of the core
law school courses in a simulated law practice environment. This institutional
1211
See Chapter 6 (The Foundation for Change) for an in-depth discussion and analysis of
consumer studies regarding the perception of lawyers and the legal system, especially in the
United States. Perspectives from Australia and other jurisdictions are also discussed.
1212
See Chapter 6 (The Foundation for Change) for an in-depth discussion and analysis on
this topic. 1213 Keyes and Johnstone, above n 1136, 537 (advocating for a more mature
consultative and respectful relationship, in which the function of the academy is regarded
as significantly broader than the preparation of graduates for private practice, and the
production of research of utility to practitioners and judges.).

design reform proposal, however, involves a law student undertaking
1214
apprenticeship training at local or community law practice firms.
Historically and prior to the introduction of clinical legal education, lawyers
1215
were trained through an apprenticeship at a law firm. This proposal involves the
integration of legal education and apprenticeship. The difference is in the degree of
integration, the degree of real law practice and a greater sense of reality in terms of
what law practice is actually like. Under this approach, local practitioners are
continually engaged with the law school to mentor upcoming lawyers.
A third option to address this issue and increase collaboration between the legal
academy and professional practice is to create legal clinics on the grounds of each law
school. This option is different from law students attending apprenticeship training at
external law firms as discussed above. Legal clinics can be stand-alone, revenue
generating enterprises such as those at, for example, Vermont Law School and Stanford
Law School. Legal clinics can and should also be connected with research centres of
excellence. These legal clinics provide ways for all key stakeholders of the legal
community to join with academia and create an environment where the best in
academia, law practice, and community organisations come together to serve real clients
while integrating theory and practice in one setting. In addition, these legal clinics
provide a rich venue in which to conduct empirical research, an activity that needs to be
more fully integrated into legal academia and law practice.
A key benefit of establishing legal clinics at or near the law school ensures
that law students have a forum in which to apply what they are learning in class,
1214
Condlin, above n 43, 318-320 (providing a historical perspective of clinical legal education and the
apprenticeship
model). 1215 Ibid.

integrate classroom learning with practical experience, engage in mentoring relationships
with practicing attorneys and contribute to resolving real disputes in a real-time setting.
This also allows both the faculty and practicing attorneys to gauge a students progress
and provide a realistic, positive mentoring so as to reward positive behaviour, encourage
potential behavioural adjustments for greater professional success, or reinforce
substantive knowledge at the most foundational level. As stated earlier, lay persons
begin the journey to being future practicing lawyers at law school. To the extent that law
school can take the initiative to begin or continue to shape the legal and moral
development of practitioners towards greater maturity is the extent to which lawyers can
be successful practitioners. The result is a greater chance that graduating law students
will uphold the values and goals of the profession in practice.
In conclusion, this section recommended two effective institutional design
reforms aimed at ensuring that the legal regulation and ethical standard setting reforms
discussed in prior sections have the greatest chance of success in addressing the issue
of deception in negotiation. Institutional design reforms aimed at improving that journey
from start to graduation is one of the best and most effective means of reversing a cycle
of potentially unethical or unworthy professional behaviour, including potentially
deceptive behaviour in negotiation. Changing behaviours and perceptions which have
been engrained for so many years as part of a dominant legal culture may seem
impossible; however this is no longer so impossible as to risk remaining with the status
quo. Change is possible and change must happen.
7.6 IMPLEME/TI/G BEHAVIOUR CHA/GES GE/ERALLY
The purpose of this section is to introduce ways in which the reform proposals
discussed above can be implemented to address the issues highlighted by the research

questions in this thesis. One of the key aspects of the question of lawyer
deception in negotiation is that it involves the behaviour of lawyers in a particular
setting, behaviour which may be hard to see, measure, or change. In addition,
other issues identified throughout this thesis, such as through the comparative
study of legal ethics codes in Chapter 4 and a study of the ethics violation cases
in Chapter 5, reflect a need for behavioural changes which can be fostered
through the implementation of the reform proposals outlined in prior sections.
Changing behaviour is hard for any ordinary person. Changing the
behaviour of lawyers may seem impossible given such a rich history and
engrained culture generally consisting of competitiveness, adversarialism,
winning, zealous representation, confidentiality, and partisanship. Changing the
behaviour of a large group to the extent that there is sufficient impact on society
and the profession itself can be a challenge. However, changing behaviour is
possible by understanding existing theories of behaviour modification and
strategically using certain models that aid in effective change.
From a policy and behaviour modification perspective, there are several
theories for changing behaviour. This section will introduce and discuss current
theories of encouraging behavioural changes as a means of showing that there
are several options available to key stakeholders for undertaking successful,
effective, and measurable reform. This section will also recommend some policy
and behavioural change theories that would appear to be beneficial in addressing
the issues raised in this thesis. More importantly, the purpose of this section is to
stress that it is no longer an option to avoid or sideswipe the issue, especially as
there are many ways to address it.

To date, rational choice theory has dominated policy making, legal decision-
making, and pervaded other areas of society. Rational choice theory is based on the
assumption that people will assess the choices available to them, determine the costs
and benefits of each available choice, and make a rational choice that yields the highest
1216
net benefit. The standard tools of public policy to change behaviour under the
rational choice model are now well-known: sanctions (fines and other penalties), price
1217
signals (taxes, financial incentives) and the provision of information.
However, as discussed in Chapter 2, the rational choice model has limitations, which
are addressed through prospect theory and the frivolous framing theory discussed in
1218
Chapter 2, section 2.3.7. The rational choice model and its derivatives are the most
common models used in the legal reforms area. In addition to these theories,
behavioural change can also be implemented using other theories.
Behavioural change at the individual level can be influenced through
theories of conditionality, classical conditioning, cognitive consistency theory,
social cognitive theories, and heuristics and biases.
Conditionality means changing behaviour through rewarding or punishing the
1219
consequences of the behaviour. Classical conditioning involves rewarding or
1220
punishing behaviour based on an association with different stimuli. Cognitive
consistency theory encourages behavioural change by making associations between
the desired change and the individuals values and beliefs, ensuring there is
1216
Australian Public Service Commission, Changing Behaviour: A Public Policy Perspective (2007) 7
<http://www.apsc.gov.au/publications07/changingbehaviour.pdf> at 9 August 2010; Gary S Becker,
The Economic Approach to Human Behavior (1976); David Hume, A Treatise of Human
Uature (1888). 1217 Changing Behaviour: A Public Policy Perspective, above n 1216, 7.
1218
Please see Chapter 2, section 2.3.7 (Decision-Making Theories Affecting Legal Negotiation)
for a detailed discussion. See also Guthrie, above n 265; Rachlinski, above n 269, 121.
1219
Changing Behaviour: A Public Policy Perspective, above n 1216, 9-12.
1220
Ibid.

consistency, so that the individual is more likely to adopt the change on a
long-term basis. Social cognitive theories emphasise individual self-
empowerment and self-confidence through small goals, reinforcement, and
1221
monitoring. Finally, heuristics and biases at the individual level, such as
anchoring, scarcity, loss or gain, and peak experience influence the degree to
1222
which there is a consistent bias in decision-making.
With regards to lawyers use of deception in negotiation, heuristics and biases as
well as cognitive consistency theory can play a role in decision-making. In Chapter 2, Lee
1223
et als 2004 study emphasised the difference between pro-social deeds (e.g. truth-
telling) and anti-social deeds (e.g. telling lies) and how they can be influence by culture.
In the context of the legal system and the use of deception in negotiation, the legal
system, through the legal ethics codes studied in Chapter 4, can be considered a culture
that rewards pro-social deeds (e.g., honesty and candour) yet the individual lawyers
success is based on using anti-social deeds (e.g., deception) in negotiations. As the
results of the comparative study of legal ethics codes in Chapter 4 indicate, the legal
system has not created any strong positive or negative associations between using
deception in negotiation and the resulting negative consequences. As such, consistent
with prospect theory, deception in negotiation is not viewed as a high-risk behaviour to
the extent that it deters practitioners from using it to gain an advantage.
1221
1222
See Amos Tversky and Daniel Kahneman, Judgment Under Uncertainty: Heuristics and
Biases in David Halpern et al, Personal Responsibility and Changing Behaviour: The State
of Knowledge and Its Implications for Public Policy (2004) 24
<http://www.cabinetoffice.gov.uk/media/cabinetoffice/strategy/assets/pr2.pdf> at 9 August
2010; Korobkin and Guthrie, above n 79; Guthrie, above n 1032.
1223
See Chapter 2, Section 2.5.2 (Research About Deception/Lying) for a detailed discussion
about Lee et als studies on this topic.

To alter this behaviour at the individual level, the profession could implement
the legal regulation and ethical standard setting reforms to create a consistency in
the values and beliefs of legal practitioners. Then, cognitive consistency as well as
social cognitive theories can be used to associate the desire for behaviour consistent
with these values by rewarding the desired behaviour. Consequently, legal
practitioners may achieve a certain level of self-empowerment and self-confidence
that reinforces the notion that the benefits of not using deception in negotiation are
greater than those derived by adopting deceptive tactics in negotiation.
In addition to influencing behavioural change at the individual level,
there are several theories of behaviour modification at the inter-personal level.
These include authority theories, reciprocity and mutuality, face-to-face
approach, and inter-personal heuristics and biases.
Authority theory is based on the view that people will comply and change
behaviour if told to do so by someone whom they admire or feel is legitimate on the
1224
basis of a social role, expert opinion, or reward and punishment. For example,
teachers, managers, partners, or entertainment and sports heroes may fall under this
category of influential authority figures. Reciprocity and mutuality theories attempt to
1225
influence behavioural change through mutual gain or reciprocated favours.
Both reciprocity and mutuality are generally used in conjunction with cognitive
consistency and conditionality theories discussed above. A face-to-face approach can be
1226
used to increase commitment to behavioural change. This approach is effective when
combined with the authority theory. Finally, interpersonal heuristics and
1224
1225
Ibid.
1226
Ibid.

1227
biases can also influence behavioural modification goals. Since heuristics
and biases are mental shortcuts that occur automatically, any behavioural
1228
modification program must take into account such factors as attribution error,
1229 1230 1231

inter-group bias, false consensus, and false uniqueness.
With regards to addressing the issue of lawyer deception in negotiation at an
1232
inter-personal level, the current standard conception model of ethics seems to
indicate that attribution error, inter-group bias, and false uniqueness are the likely
heuristics and biases that must be taken into consideration when developing an
effective change program. Legal practitioners, as a largely self-regulated profession,
are likely to disproportionately agree with their own groups view of issues such as
deception in negotiation and discount the views of external groups who contend that
lawyers are deceptive in negotiations. In addition, due to the competitive nature of an
adversarial legal system, lawyers are likely to overestimate their own skills at the
expense of another or blame external factors rather than taking personal
responsibility for unsuccessful or less than optimal outcomes in negotiations.
Given the structure of most law firms and legal services organisations, a
combination of authority theory and face-to-face approach can be used to curtail
deception in negotiation. For example, as research by Lerman, Lamb, Macfarlane and
1227
Changing Behaviour: A Public Policy Perspective, above n 1216, 16; See also David
Halpern et al, above n 1222, 27.
1228
Changing Behaviour: A Public Policy Perspective, above n 1216, 16 (defined as tendency to
over-emphasize dispositional factors about people and under-emphasise situational factors).
1229
Changing Behaviour: A Public Policy Perspective, above n 1216, 16 (defined as
tendency for people to flatter themselves...and underestimating their peers abilities).
1230
tendency to overestimate the extent to which other agree with their own opinion thus
providing false consensus of ones own personal opinion).
1231
tendency for people to flatter themselves...and underestimating their peers abilities).
1232
See Chapter 2, Section 2.3.3 (Theories of Legal Ethics) for more information on this topic.

1233
Manwaring, and Wilkinson et al shows, lawyers tend to place greater
emphasis on the advice given by partners and senior practitioners than on the
actual ethics codes when faced with specific ethical dilemmas. Therefore, at
the interpersonal level, law firm partners, senior legal practitioners, and
judges can play a key role in encouraging behavioural changes.
A final set of theories which can be leveraged to influence behavioural
modification is aimed at the group level. Behavioural modification at the group
level can be accomplished by using social capital theory, diffusion of innovation,
tailoring messages and information, and the social marketing approach.
Social capital theory works on the basis of creating and using social networks
and social norms to increase social cohesion and spread the message for desired skills
1234
and behavioural changes. Diffusion of innovation theory encourages behaviour
modification by using influential people, organisations, and partnerships with key groups
1235
to spread behavioural change messages in innovative ways. Tailoring messages
and information is especially relevant and useful when behavioural change must be
1236
targeted towards demographically or culturally distinct groups, such as legal
1237
practitioners. Finally, the social marketing approach, developed by Kotler and Lee, is
focused on influencing behaviours that will improve social outcomes such
1233
See Chapter 2, Section 2.5.4 (Research About Legal Ethics) for more information on this topic.
See also Chapter 3, Section 3.2 (Lawyers Deceiving Clients) for more information on Lermans study.
1234
Changing Behaviour: A Public Policy Perspective, above n 1216, 17-20 (defining social
capital as consisting of networks, norms, relationships, values, and informal sanctions that
shape the quantity and cooperative quality of a societys social interactions.).
1235
Changing Behaviour: A Public Policy Perspective, above n 1216, 17-20; See also S Godin,
Unleashing the Idea Virus (2002); J Collins et al, Carrots, Sticks and Sermons (2002) 17.
1236
Changing Behaviour: A Public Policy Perspective, above n 1216, 17-20
1237
Changing Behaviour: A Public Policy Perspective, above n 1216, 21-28; P Kotler and N Lee,
Marketing in the Public Sector: A Roadmap for Improved Performance (2006) 193-211 (discussing the
twelve (12) principles underlying the social marketing approach to influencing behavioural change).

1238
as improving health or improving injuries thus improving overall quality of life.
The changed behaviours are meant to improve the individual and the
1239
environment, resulting in newly established social norms.
In the context of addressing the issue of deception in negotiation at the group
level, the social marketing approach combined with tailoring messages to the culture of
the legal system might work to increase awareness of the impact of using deception in
negotiation as well as ways to sustain pledges for behavioural modification.
In addition to the individual, inter-personal, and group approaches to
behavioural modification discussed above, there are also a number of other theories
of behavioural change proposed by economists, social scientists, and psychologists.
One of the most well-known of these are a set of principles developed by Dale
1240
Carnegie based on the work of contemporary psychologist B F Skinner. These
principles are based on a positive reinforcement approach rather than the more
common negative reinforcement approach (punishment) of the most behavioural
change models. As these principles appear to overlap with those of the social
marketing approach above, they are not discussed in detail here. Attempts to change
behaviour may be different within a specific context, such as negotiating with an
opponent only one time versus negotiating with a particular person on a repeated
1241
basis.
Furthermore, behavioural changes can also be reinforced through the
1238
Changing Behaviour: A Public Policy Perspective, above n 1216, 21.
1239
Ibid.
1240
See generally, Dale Carnegie, How to Win Friends and Influence People (1987).
1241
Carrie Menkel-Meadow, Is Altruism Possible in Lawyering (1992) 8 Georgia State
University Law Review 385, 397-398 (discussing the application of Robert Axelrods
experiments to negotiation behaviours, discovery and disclosure behaviours in law). See
also Robert Axelrod, The Evolution of Cooperation (1984).
1242
influence of parents or other adult role models as well as socio-cultural
factors, such as being identified as part of a globalized humanity rather

than a particularised humanity, causing one to adopt behaviours or change
1243
them based on the extent of role or socio-political identification.
So far, this section has laid out various theories of initiating behavioural
change at the individual, interpersonal, and group or community level combined with
an example of how some of these theories might be used to address the issues of
deception in negotiation and to implement the policy reform proposals. In addition, the
prior chapters have established the foundation for change and this chapter has
identified and recommended certain reform proposals for managing that change.
Now, I address the question of which behavioural change approaches might best be
suited to address the issue of lawyer deception in negotiation and the issues identified
by answering the related research questions posed in this thesis.
In 2004, Halpern and his colleagues in the U.K. Prime Ministers Strategy Unit
issued a discussion paper aimed at generating discussion on imaginative thinking
1244
about how policies could be designed in the future to accomplish the goals of
government as requested or mandated by its citizens. One of the key areas was on
the importance of personal responsibility and working in partnership with
1242
Menkel-Meadow, above n 1242, 398-399 (discussing social psychologist Eva Fogelmans findings
of the study of rescuers of Jews or collaborator regimes during World War II for determinants of
altruistic behaviour in certain situations, especially where such behaviour was unlikely). See also Eva
Fogelman, Moral Heroes of Our Time: Christian Rescuers, America 161 (December 9, 1989); Samuel
P Oliner and Pearl M Oliner, The Altruistic Personality: Rescuers of Jews in Uazi Europe (1988).
1243
Menkel-Meadow, above n 1242, 399 (discussing further studies on possible determinants of
altruistic behaviour). See also Kristen R Monroe et al., Altruism and the Theory of Rational Action:
Rescuers of Jews in Nazi Europe (1990) 101 Ethics 103; Adam Smith, The Theory of Moral
Sentiments (1759); Adam Smith, The Wealth of Uations (1776). Menkel-Meadowss view is that
Smiths views are contradictory with regards to human behaviour and altruistic tendencies.
1244
David Halpern et al, above n 1222, 3.

government to implement effective behavioural change because
1245
government cannot do it alone.
Halpern et als emphasis on personal responsibility as a driver for behavioural
change is central to my recommendations on implementing the policy reform proposals
discussed in this Chapter given the high level of personal responsibility that practicing
lawyers undertake in the course of their practice. The emphasis on personal
responsibility also attempts to establish a new relationship between the state and the
individual, where encouraging personal responsibility increases empowerment which, in
turn, encourages behavioural changes towards desired results.
Halpern and his colleagues identified three key factors that are important to
consider in recommending a course of action. First, major policy outcomes require
1246
greater engagement and participation from citizens in the sense that individuals
must be willing to change in order to create long-term improvements. Second, Halpern
and his colleagues stress that there are strong moral and political arguments for
1247
protecting and enhancing personal responsibility. In essence, government works
better when its citizens are empowered to make decisions on their own best interests
1248
rather than decisions being imposed by government. Finally, behaviourally-based
interventions rooted in personal responsibility are significantly more cost-effective [and
1249
better] than traditional service delivery. Traditional service delivery presumably
means that the government takes greater ownership for
1245
David Halpern et al, above n 1222, 6 (discussing the key pressures and factors that require
government to focus on co-production and behavioural change approaches to accomplish policy goals).
1246
David Halpern et al, above n 1222, 3.
1247
Ibid.
1248
Ibid.
1249
Ibid.

1250
providing the solution than the individual. This notion of encouraging
more personal responsibility is consistent with the nature of the legal
1251
profession and views of legal scholars.
The legal profession and its practicing members are still generally self-
regulated and, therefore, would seem more conducive to personal responsibility
approaches to behavioural changes. In light of this view, I recommend a multi-
level approach to addressing the central issues of this thesis by leveraging Dale
Carnegies underlying principle of positively influencing behavioural change and
Halperns recommendation of encouraging personal responsibility. The reason
for recommending this multi-level approach is that the legal system is, by nature,
a blame game, consequentialist, utilitarian, punitive, focused on past events, and
1252
geared towards a win-lose mentality. In order to successfully implement the
tripartite policy reforms solution discussed in this chapter, it is important to frame
the issues differently and to engage lawyers in a different way so as to yield
honest opinions and effective outcomes.
As Carnegie and psychologists such as B F Skinner have observed that when
criticism is minimised and praise emphasized, the good things people will do will be
1250
David Halpern et al, above n 1222, 8-9, 12-13 (showing peoples opinions on the importance of
personal responsibility versus government responsibility on key policy issues. Halpern et al state that
...people in [sic] Britain appear fairly comfortable with the balance that UK policy has generally struck
between state and individual responsibility. In contrast, the publics of both USA and some
Scandinavian countries have tended in recent years to favour a shift towards more individual
responsibility, while the publics of Latin America, Japan and the Former Soviet Union have wanted to
see their governments take more responsibility.). In seen in Figure 6, Canada is closely aligned with
the United States while Australia is higher on personal responsibility yet still more comparable with
Britain.
1251
Rhode, above n 151, 209, 213 (We need to socialize lawyers to accept more personal
responsibility for their professional actions...working conditions....regulatory process;
...challenge is to enlist both the public and the profession in reforms that reconnect the
ideals and institutions of legal practice....).
1252
Chart, above n 899, 191 -196 (discussing the characteristics of legal education and the
case method approach to legal education creates disharmony with how lawyers approach
negotiations and how they are conducted).

1253
reinforced and the poorer things will atrophy for lack of attention. The legal
profession, from the moment one enters law school, is rife with rules-veneration,
competition, high stress, high expectations, and as reported more recently, low civility
and collegiality among practitioners. Some of this might be attributed to economic
competition as well as changes to the profession; however, the more likely reason is the
culture of the legal profession. This can be counteracted with more encouragement and
professionalism in the context of implementing reforms. Therefore, to encourage ethical
negotiation behaviour, one must engage practitioners, encourage them to adopt pro-
social behaviour, and praise them for such desired behaviour as much as possible
1254
catch them doing something right and reward it.
The first recommendation of a multi-level approach to implementing the policy
reform proposals discussed in this chapter involves conducting a structured, statistically-
based empirical study aimed at determining the attitudes and perceptions of lawyers
regarding the use of deception in negotiation, the importance of negotiation in their daily
practice, the role of the legal ethics codes in helping them make ethical decisions, and
the issues underlying any of these major areas, including whether lawyers felt they had
1255
received sufficient education to deal with these issues. These studies may involve
using multiple assessment tools and can be extensions of those studies already
discussed in this chapter or developed with a specific jurisdiction in mind. The purpose of
this first recommendation is to engage the key stakeholders of the legal system, namely
practicing lawyers, so as to produce evidence-based data
1253
Carnegie, above n 1240, 254 (quoting B F Skinner).
1254
Note: This would be consistent with several of the behaviour modification theories discussed
earlier such as conditionality, classical conditioning, and cognitive consistency where the legal
practitioner believes that being honest as a lawyer is consistent with his/her personal beliefs.
1255
See, eg, Avnita Lakhani, Deception as a Negotiation Tactic: A Study of the Views and
Perceptions of Practitioners Update (October 2009). Update is a monthly publication of LEADR.

which can serve to determine the areas of greatest potential for
immediate and positive reform.
The second recommendation of a multi-level approach to implementing the
policy reform proposals discussed in this chapter is a readiness assessment of
those individuals, groups, and organisations who might be the primary beneficiaries
of the proposed changes. One way to conduct the readiness assessment is by
1256
understanding the stages of change that each major stakeholder might be in and
adapting proposed changes in behaviour accordingly. For example, lawyers who are
not cognisant of using deceptive tactics in negotiation or the impact of such
behaviour may be in the pre-contemplation stage and need to see evidence of a
problem first. In contrast, if law schools concur that the current legal education
curriculum is insufficient to help incoming practitioners deal with ethical issues, they
are at the contemplation stage and ready to move towards the preparation stage
and plan for changes to the curriculum.
An effective example of how to use this readiness assessment approach is
1257
documented by Richard Wu in discussing an important reform to Hong Kongs
legal education programme based on a commissioned review of Hong Kongs legal
education system. The independent review of Hong Kongs legal education system
was the first in over three decades and consisted of reviewing the legal education
1258
curricula against the Marre Report discussed earlier. The independent review
1256
David Halpern et al, above n 1222, 21-22, figure 8 (describing the stages of change); See also O
J Prochaska and C C DiClemente, Stages and processes of self-change of smoking: Toward an
integrative model of change (1983) 51 Journal of Consulting and Clinical Psychology 390-395.
1257
See generally, Wu, above n 471, 153. Wu is Associate Dean and Associate Professor, Faculty of
Law, University of Hong Kong.
1258
Wu, above n 471, 153 (citing to General Council of the Bar and the Council of the Law
Society, London, A Time for Change: Report of the Committee on the Future of the Legal
Profession (the Marre Report) (1988)).
10
resulted in fundamental changes to the curriculum by reducing lectures and
increasing problem-based learning, integrating skills training in various legal and
lawyering skills, use of training groups that encourage law students to work in
teams, and teaching and assessment methods that are more skills-based rather
1259
than knowledge-based. In the case of Hong Kongs example, the government
appears to have gone through a readiness assessment and clearly recognised a
need for reform and moved through the stages of change to act on
recommendations for reform as well as implement a maintenance plan to ensure
that those changes are durable and measurable.
The second recommendation of a multi-level approach to implementing the
policy reform proposals discussed in this chapter is to use the social marketing
approach to target specific, measurable, small changes towards those who are ready for
change. The social marketing approach is ideal for this particular issue because it allows
for change to take place gradually and thus builds trust among all stakeholders to
ensure that whatever change is implemented will be durable. This is especially important
because the specific issues to be addressed in this thesis are complex, contentious, and
require patient, reasonable, and measured response. Every stakeholder discussed in
the aforementioned proposals is important to the overall success of an integrated,
effective reform agenda. Law and the legal profession are perceived as notoriously blind
to professional reform and radical change. The social marketing approach allows for
flexibility and a variety of options in delivering the right message and encouraging the
desired behaviours. It is also more conducive to
1259
Wu, above n 471.

personal responsibility approach rather than imposed governmental or
professional mandates.
Finally, as Halpern et al have observed, the best, most effective and long-
term way to help someone is to find a way where they can help themselves by
recognising that policy can have twin goals which operate together - policy must at
once empower and give choices, but at the same time policy should set the default
to be in the best interests of individuals and the wider public interest...[and] [t]o be
effective, this twin approach needs to be built around a sense of partnership
1260
between state and individual. I would further argue that this partnership needs
to include the public as well as educational institutions to truly implement changes
which will create positive public perceptions of the legal profession. More than ever,
as highlighted by scholars such as Rhodes, Menkel-Meadow, Luban, Chart, Eyster
and others, lawyers need to start playing an active part in professional reform and
feel as if they are owners of the system they devote such an enormous part of their
life to, both on a personal and professional level.
In conclusion, this section highlighted various theories of encouraging and
implementing behavioural changes. While still considered a dominant approach to
behaviour change, the rational choice model is no longer the most dominant or
highly effective approach, especially in the area of complex behavioural change
issues. In addition, this section discussed how some of the aforementioned theories
can be used to address the issue of lawyer deception in negotiation.
The theories and approaches presented in this section suggest that there is
hope in encouraging behavioural change and a variety of tools and techniques such
1260
David Halpern et al, above n 1222, 60-61.

10
that the profession should not be discouraged from attempting to implement
the policy reform proposals discussed in this chapter. Instead, the profession
should be encouraged to act where necessary to address behavioural
changes using positive and effective methods. Law is generally considered a
predominantly reactionary profession rooted in tools of rational analysis and
punitive measures to diagnose, analyse, and control behaviour. However, with
the introduction of ADR, law is slowly evolving and this means that change
may be required to the ways and means used to practice law.
By implementing the policy reform proposals discussed in this chapter
through the strategic use of established and successful theories and
approaches, such as those discussed above, the profession stands to reap
enormous benefits. The potential goals and benefits to be derived from
implementing the proposed policy reforms are discussed in the next section.
7.7 IMPLEME/TI/G THE PROPOSED POLICY REFORM PROPOSALS
Attempting to address the issue of a lawyers use of potentially deceptive
behaviour in negotiation has been the basis of significant scholarly debate since the
early 1980s and continues to today. It remains a timely and unaddressed issue
because it is complex, multi-disciplinary, and cross-jurisdictional. A single solution is
likely not as effective as an integrated, multi-disciplinary approach to this issue.
The goal of any reform proposal should be to improve the lives of those who are
recipients of or subject to the reform as well as to offer improved services to those who
may be the intended beneficiaries of such reforms. The net result is increased quality in
the performance and satisfaction of all key stakeholders, resulting in financial stability
and professional viability. The importance of addressing this issue

and the potential benefits can be seen from the perspective of what Fleming,
Coffman, and Harter call the human sigma. In the context of this thesis, the
goal of implementing the policy reform proposals discussed in this chapter is
to increase the human sigma of the legal profession in a positive way.
In manufacturing, quality and value of a given business is generally managed
and measured through methodologies such as Six Sigma principles. Six Sigma
principles are quality improvement guidelines that are applied in the manufacturing
1261
sector to ensure that value is created in the factory floor. It works well in
manufacturing because of predictable properties and variables. The profession of
law is a service organisation where the product is more service-oriented in the form
of intellectual legal advice, reasoned opinions, negotiated agreements, and court or
1262
legal documents. In a service organisation, the predictable properties are less
1263
and variability is potentially greater because of volatile human dimensions.
As discussed earlier, rational choice is not the only thing guiding human
1264
behaviour in the legal context. Other factors, such as external influences,
environmental factors, peer pressure, and emotions can significantly affect certain
decisions. In the profession of law, employees are the individual lawyers and the
customer is the client (or plaintiff and defendant). It is in the interests of the employer
(i.e., the legal profession in the form of law firms, non-profit organisations,
corporations, etc) that both employees and clients are happy. Lawyers provide a
1261
John H Fleming, Curt Coffman, and James K Harter, Managing Your Human Sigma (2005)
Harvard Business Review 107, 108.
1262
See, eg, Bok, above n 547, 1 (describing universities and law firms (and practice of law)
as intellectual institutions affected negatively by competition and stating competition in
intellectual pursuits is problematic in that it is often hard to measure the quality of the
product.). The purpose of this section is to address how the human sigma approach can be
used to measure the quality of a service-oriented organisation such as law.
1263
Fleming, Coffman, and Harter, above n 1261, 108.
1264
Please see Chapter 2, section 2.37 for a more detailed discussion.

service to clients in the form of negotiations, legal advice and formal
representation of the clients interests. Within such a service profession, there
can be enormous variability in performance within each jurisdiction and within
each local legal services provider, including those who offer ADR services. .
To address quality and value in a service organisation, Fleming, Coffman
and Harter developed a quality improvement approach called human sigma,
designed to reduce variability, improve performance, improve the quality of the
customer-employee relationship and, thus, improve financial performance and
satisfaction of both the client and the employee. This, in turn, creates greater
stability, financial viability and positive perception of the employer (the institution
or business). Human sigma argues that in a sales and service organisation, there
are enormous variations in quality at the work-group and individual levels in the
1265
employee-customer encounter. This creates local variability to the extent that
it affects performance of the workgroup and the company as a whole.
For example, in the legal profession, a client may be very happy with the
attorney-client relationship yet have a completely negative view of the legal
1266
profession as a whole. By reducing local variability and managing the quality of
the employee-customer encounter at the foundational level through a consistent
method of assessment and process management, the human sigma score of a
company (i.e., a law firm or association) can improve and result in greater financial
1265
Fleming, Coffman, and Harter, above n 1261, 108. This can certainly be verified by the
fact that while consumers may have a negative perception of the legal system as a whole,
they generally have a positive perception of their own lawyer, owing greatly to the individual
lawyer and the quality of the lawyer-client relationship based on loyalty and partisanship.
1266
See, eg, Public Perception of Lawyers: Consumer Research Findings, above n 13 (confirming the
publics general perceptions versus individual perceptions of individual attorney-client relationships).

1267
improvement. An added benefit not fully discussed by the authors is the positive
perception and views of the employer as a result of this quality improvement. Fleming,
Coffman and Harter assert that the quality of that employee-customer interaction can be
improved through both short-term transactional interventions (such as coaching) and
long term, transformational ones (such as changing the processes for hiring and
promotion). The core principles of human sigma can be applied to the issue of lawyers
deceptive conduct in negotiations as explained below.
One could argue that while lawyers are part of a collective profession
with a common goal and set of rules, law is also highly variable and lawyers may
act differently based on their local jurisdiction. In the context of negotiation and
without guidance from the profession through its legal ethics codes, lawyers may
negotiate quite differently using different styles depending on their personal style
1268
or the community negotiation standards of their jurisdiction. In effect, this
means that there is enormous local variability in how lawyers negotiate and
whether they use deceptive behaviours in negotiations. This local variability may
extend to each negotiation and to each lawyer-client relationship.
As discussed in Chapter 4, one jurisdiction, such as Alberta, Canada has strict,
explicit rules on lawyers behaviour as negotiators. Another jurisdiction, such as
Queensland Australia or Hong Kong may be completely silent on the issue while yet
another, such as the United States, may appear to allow some forms of deception based
on generally accepted negotiation conventions recognised in that jurisdiction
1267
Fleming, Coffman, and Harter, above n 1261, 108.
1268
See eg Williams, above n 225 (finding different negotiation and lawyering styles in
even a single jurisdiction).

1269
without clearly defining those conventions. This is an example of how
the differences in the legal ethics codes can perpetuate local variability on
one simple issue, thus creating a ripple effect on legal practice.
Local variability is not necessarily undesirable; however, if the local
variability impacts on performance, quality of the service, or perception of a
professional or the company he/she is part of, then local variability may be
considered undesirable or even detrimental to the organisations success. While
some might argue that a degree of local variability is normal and that the
reputation effect or market economics will take care of these issues, the best way
to consistently manage these types of cases before they create lasting damage is
to be clear on the rules and processes which apply in that situation. Without
measuring the effectiveness and satisfaction of the employer-employee-customer
interaction from all sides, it is not appropriate to simply say there is no issue or
that the issue does not require some degree of attention and resolution.
In this case, the situation is whether lawyers are allowed to use
deceptive tactics or engage in allegedly deceptive behaviours in negotiations.
By setting clear guidelines, creating consistency in the legal regulations, and
creating the institutional environment that supports changed behaviours, local
variability can reduced and measured consistency can be increased across
the local, national, and international legal work groups. The result is greater
employee and customer satisfaction combined with stronger performance at
the professional, personal, and financial levels for all key stakeholders.
1269
See generally Daigneault and Marshall, above n 1097, 18 (highlighting the precarious
position of lawyers in the area of negotiations as well as the issues with Rule 4.1 of the
Model Rules of Professional Conduct in the United States).

To date, Fleming, Coffman and Harter have successfully applied their human
sigma methodology to the retail banking and call centre management areas which are
heavy in human interaction and variability. Comparatively, given the extensive and
sometimes intense nature of human interactions and volatility in the legal profession,
human sigma principles can be used in the area of law and legal education. More
importantly, the human sigma principles can be used in implementing and measuring
the success of the proposed policy reform proposals recommended in this chapter.
7.8 CHAPTER CO/CLUSIO/
This chapter presented a tripartite set of policy reform proposals for addressing
the issue of lawyers use of potentially deceptive tactics in negotiation in an
integrated and multi-disciplinary approach. The policy reform proposals were
centred on targeting legal regulation, ethical standard setting and institutional
design. Further to the policy reform proposals, a discussion and analysis of
various behavioural change models affirms that there are a variety of effective
ways to address this complex issue. Addressing this issue in a concrete and
measurable way will go a long way towards reducing the local variability and
confusion on appropriate standards of behaviour for lawyers in negotiation.
The potential benefits of implementing the policy reform proposals include
decreased local variability resulting in better performance, increased consistency
in the way lawyers practice as negotiators, clarity in the standards of negotiation
behaviours, reduction in ethics violation cases, and greater positive public trust in
and perception of lawyers and the legal profession. The next chapter provides a
thesis summary and concludes with remarks on the impact of the findings and
recommendations in this thesis to future research, practitioners, and theory.

CHAPTER 8
THESIS SUMMARY A0D CO0CLUSIO0S
In the last analysis, the law is what the lawyers are. And the
law and the lawyers are what the law schools make them.
1270
~ Felix Frankfurter
And the day came when the risk to remain tight in a bud
was more painful than the risk it took to blossom.
1271
~ Anais ?in
The foregoing chapters outlined four primary research questions, discussed
the results of an analysis into each research question, established a foundation for
change, and presented a set of strategic, integrated policy reform proposals for the
issues arising out of this research. This chapter begins with assessing the
implications of this study on future research and practice. Next, the chapter discusses
the relationship of the results to existing or future theory. Finally this chapter
concludes with a call to action to implement the policy reform proposals outlined in
Chapter 7 in order to address the issues discussed in this thesis.
8.1 I0TRODUCTIO0
Chapters 3, 4 and 5 presented and discussed the results of analysing each of
the three significant research questions outlined in Chapter 1. The research
led to the conclusion that strategic policy reforms are essential to addressing
the issue of a lawyers use of deception in negotiation. Chapter 7 outlined
these recommended policy reforms using an integrated, tripartite approach.

1270
Felix Frankfurter, cited in Rand Jack and Dana Jack, Moral Vision and Professional
Decisions: The Changing Values of Women and Man Lawyers (1989). See also Sisela Bok, A
Flawed System of Law Practice and Law Teaching (1983) 33 Journal of Legal Education 570,
583 (...law schools train their students more for conflict than for the gentler arts of
reconciliation and accommodation. This emphasis is likely to serve the profession poorly.).
1271
Anais ?in Quotes, above n 727. Anais Nin was an American author.

The first research question, discussed in Chapter 3, confirmed that lawyers tend
to engage in deceptive and misleading conduct in practice, including during
negotiations. Williams long-range study combined with Lerman, Davis, and Wetlaufers
anecdotal studies in the United States and Australia identified ways in which legal
practitioners tend to use deception in practice and ways in which lawyers attempt to
1272
justify such conduct. One of the key insights from these studies is that legal
practitioners seem to believe that such conduct is either explicitly permissible under the
legal ethics code of their jurisdiction or acceptable because the legal ethics code does
not explicitly prohibit such conduct. The insights from the first research question
established a sound basis for investigating the second research question.
The second research question, discussed in Chapter 4, focused on whether
legal ethics codes regulate the issue of deception in negotiation. Chapter 4 contains
1273
the results of a study of the legal ethics codes of four common-law jurisdictions.
The study revealed that legal ethics codes, which are meant to guide lawyer
conduct and curtail deceptive or misleading conduct of legal practitioners,
1274
are broad, highly aspirational, and out-of- step with societal ethics,
especially with regards to negotiation behaviour.

Historically, law and ethics (morality) have been separated in terms of law and
legal education. However, there is an equally strong argument that law and ethics are
interdependent such that they can coexist and are not mutually independent of each
1272
See Chapter 3 (Alleged Deceptive Behaviours of Lawyers) for more information.
1273
Behaviours in Negotiation) for more information.
1274
See Chapter 2, Section 2.3.2 (Theories of Ethics) for a discussion on ethics and
dominant theories of ethics.

1275
other. In some respects, the legal ethics codes represent the
morality of the profession while statutes and regulations represent the
law (rules) of the same profession. They are meant to work together.
With regards to the application of the legal ethics codes to guide professional
conduct in negotiations, a review of legal ethics codes across four common law
jurisdictions raises several questions: 1) whether negotiation need to be explicitly
defined as a function of the legal professional; 2) whether the legal ethics codes
need to have special rules for lawyer as negotiator which are different from
traditional rules of the bargaining process; 3) whether all legal ethics codes make
exceptions for certain permissible deception in the context of negotiation consistent
with generally acceptable negotiation standards; 4) whether legal ethics codes,
cross-jurisdictionally, should be consistent with regards to deceptive or misleading
conduct, especially in negotiations; and 5) whether legal ethics codes need to be
amended to include gradations or categories of deceptive conduct with
corresponding sanctions which are aligned to reflect prevailing legal precedent.
These foundational questions were addressed and incorporated into the policy
reform proposals discussed in Chapter 7 with the aim of improving the extent to
which ethics can influence the behaviour of legal professionals on this issue.
The recognition that lawyers engage in deceptive tactics in
negotiation and that the legal ethics codes fail to provide sufficient
guidelines on appropriate negotiation behaviour led to the third research
question, a study of ethics violation cases as discussed in Chapter 5.
1275
See, eg, Honor, above n 115.

10
The third research question involved an analysis of whether the legal ethics
coded are successful in curtailing deceptive behaviour in negotiation. Chapter 5
presented the results of a unique study of the ethics violation cases of one common-
law jurisdiction, namely Queensland, Australia. This common law jurisdiction serves
as a representative sample from the jurisdictions studied in Chapter 4. The results of
1276
this analysis confirmed earlier research on legal ethics discussed in Chapter 2
and led to the conclusion that the legal ethics codes do not appear to be entirely
successful in curtailing the deceptive conduct of legal professionals, whether in
negotiation or otherwise. For example, the analysis of the ethics violations cases
seem to confirm Schweitzer and Crosons findings that ethics education is not a
sufficient deterrent and is a negligible factor in preventing deceptive behaviour in
1277
negotiation. This might be due to lack of resources, lack of adequate policing of
lawyers in a self-regulated profession, discretionary choices on which violations are
egregious enough and deserve to be prosecuted, or some other factor.
The ethics violation cases also show that the profession will only vigorously
pursue and prosecute the most egregious violators and that the number of prosecutions
1278
are small compared to the total number of lawyers in that jurisdiction. As such, these
cases could be seen as token prosecutions that serve as reminders of a public flogging
should lawyers violate the code of professional conduct and as examples to the public
that the profession takes these violations seriously. Furthermore there is a
1276
See Chapter 2, Section 2.5.4 (Research About Legal Ethics) for more information.
1277
See generally Schweitzer and Croson, above n 326, 225-228. The qualification is that ethics
education in law school, as it is taught today, is not a sufficient deterrent. If this was amended, there
may be a greater chance that ethics education in law school could help lawyers deal with ethical
dilemmas in practice. See Chapter 7 (Implications for Law Reforms) for proposals related to this issue.
1278
For example, the Queensland Law Society states that it has 6,000 members as at March 2008 yet
the total number of ethics violation cases alleging deceptive or misleading conduct in a 10
year period between 1996 and 2006 is approximately 20. See Chapter 5 and Appendices for
further details on this analysis.

lack of clear, consistent sets of decisions which would lead one to predict the
analysis or outcome of future cases (apart from saying the legal professional will be
struck off) because so much subjectivity seems to go into determining the severity of
the conduct and subsequent punishment. In many of the cases, it can be inferred
that each member of the tribunal that hears an ethics violation case has their own
personal ethics, a societal ethic, or even their own lawyer ethic which influences their
view of the attorneys alleged bad conduct and potentially clouds their final judgment.
The lack of clear distinctions means that those hearing ethics violation cases have
little concrete and consistent guidance on which to make sound judgment free of
1279
criticism or appeal, even with the benefits of prior case law decisions.
In summary, the foregoing chapters established a case for change in which
the profession must firmly address the issue of lawyer deception in negotiation. One
important way to do so is by implementing the policy reform proposals outlined in
Chapter 7. These policy reform proposals, based on an integrated, tripartite
response consisting of legal regulation, ethical standard setting and institutional
design reforms, serve to address the issue of deception in negotiation. In addition,
the policy reform proposals create a foundation for moving the profession forward to
meet the challenges of serving a global legal services market. As such, this thesis
has implications for further research, valuable practice recommendations for
academia and legal practitioners, and provides a tool for policy makers to engage in
effective policy reforms as discussed in this thesis. Each of these implications arising
out of the contribution of this thesis is discussed below.
1279
See, eg, Craig Stephen Bax [1998] QCA 089 (recognising that there are gradations of
deceptive conduct that would be considered egregious yet not having any impact on the
punishment imposed on the practitioner charged with intent to deceive). This view of the lack of
objectivity and consistency in ethics violation cases has been shared by many legal scholars.

8.2 IMPLICATIO0S FOR FURTHER RESEARCH
The findings of this study and the application of these findings to addressing
the issue of deception as a legal negotiation strategy have highlighted some
avenues for future research.
First, the profession and academia would benefit from extending the
work of Lerman, Rivers, Lewicki, Wetlaufer, and Davis by developing an
objective, systematic catalogue of the negotiation behaviours of lawyers. This
taxonomy could then be used to conduct quantitative studies to determine the
extent to which lawyers actually engage in the categories of behaviours defined
by the taxonomy. The taxonomy could also be used cross-jurisdictionally to gain
1280
a better perspective on the global nature of this issue.
Second, the comparative legal ethics code study conducted in Chapter 4
combined with the research findings of Lamb, Manwaring and McFarlane, Moliterno,
and Wilkinson et al can be leveraged to undertake further research on other
common-law as well as civil-law jurisdictions to determine the extent to which legal
ethics codes can serve as a valuable and practical tool for legal practitioners when
addressing ethical dilemmas such as deception in negotiation. Policy makers can
use the study in Chapter 4 to review the national legal ethics code and state-wide
ethics codes for consistency and alignment with practical expectations of ethical
conduct. Consistency is a hallmark of care and quality and this includes consistent
language, interpretation, and application of the ethical codes of conduct.
In addition to implications for further research, the findings of this
study have implications for practitioners.
1280
Note: The work of Professor Harry C Triandis is exemplary as a model of
conducting cross-jurisdiction and cross-cultural studies.
10
8.3 IMPLICATIO0S FOR PRACTICE
The findings of this study suggest several implications for practice. First,
legal practitioners and scholars need to look at the negotiation process in context. What
I mean by this is that the term negotiation is generally used as an all-encompassing
term for a process that involves the exchange of goods and services, and in many
cases of dispute resolution, the exchange of information. Context with regards to
negotiation is equally important because the context can change the rules by which
negotiation takes place. For example, negotiation in the business context (business
negotiators) may be relatively simple as having a reservation price, making an offer,
listening and responding to counter-offers, making appropriate concessions, and closing
the deal. This process is well known and articulated. Little discussion of ethics takes
place such that action precedes thought (i.e. generally action of a negotiation task
precedes any thoughts of ethical implications).
In contrast, negotiation in the context of law (legal negotiation) may
require more thought before action. In other words, I submit that legal
negotiators need to put ethics at the forefront of negotiation and think more
seriously about the ethical framework in which their negotiations take place to
ensure that their actions (use of strategy and tactics) are aligned accordingly.
Second, practitioners need a more comprehensive and well-rounded education
(discourse) on ethics, as discussed in Chapter 7, through implementation of the ethical
standard setting reforms. This is especially important today where legal practice
continues to evolve in a functional, structural, and operational manner. Nearly all law
schools require law students to take an ethics course that instructs them on the
prevailing ethics rules and case law. While legal ethics courses are helpful, the

findings of research into legal ethics as well as deception in negotiation
demonstrates that a single required legal ethics code does not guarantee or
have an impact on whether the individual will refrain from using deception in
negotiation or engaging in other deceptive or misleading practices. As such,
the current legal ethics courses, without more, may be insufficient in
providing proper guidance on how lawyers should behave.
Third, policy makers should undertake a review of the national legal ethics
code and state-wide ethics codes for consistency and alignment with practical
expectations of ethical conduct. This might include providing greater clarity about
the rules and guidelines which apply to the varied functions of a legal professional
as well as incorporating more objective, specifically defined distinctions between
professional misconduct, unprofessional conduct or malpractice with
corresponding sanctions. Consistency in thought and application is one relatively
simple way to weave a stronger ethical fabric upon which to base future conduct.
By implementing the policy reform proposals centred on the integration of ethical
standard setting, legal regulation, and institutional design aligned with core
1281
values, the profession can ensure consistency and improve performance.
More importantly, the consistency created by implementing the policy reform
proposals is likely to improve the perception of legal professionals currently held
1282
by the public as evidenced by the consumer studies discussed in Chapter 6.
In summary, this study provides many avenues of further development for
practitioners and policy makers in understanding the nature and importance of
1281
See Chapter 7 (Implications for Law Reform) for more information on these
policy reform proposals.
1282
See Chapter 6, Section 6.5 (Consumer Studies of the Legal Profession are the Sting
in the Tail) for more information.

negotiations, negotiation theory and principles, the ethics of negotiation and how
practitioners can embody the best possible ethical principles in negotiation in line
with their existing duties to the client, the justice system, and society as a whole.
8.4 RELATIO0SHIP OF RESULTS TO THEORY
This thesis began with a journey to understanding whether and the extent to
which lawyers use deceptive behaviour in negotiation and whether legal ethics
codes, principally charged with regulating lawyer conduct and providing guidance
to lawyers on acceptable and unacceptable professional conduct, are successful
in curtailing such deceptive behaviours. This journey led to the conclusion that a
strategic set of integrated policy reform proposals is necessary and beneficial to
not only addressing the issues discussed in this thesis but to align with recent
recommendations on the nature of professionalism and legal education as they
1283
pertain to the legal profession.
The findings and conclusions have implications to the prevailing theory of
legal ethics, commonly called adversarial ethics or standard conception.
Deception in negotiation is common and expected, especially where the negotiator
is using a distributive bargaining theory of negotiation; however, it is also common in
interest-based and mixed-motive negotiations because they eventually contain
some distributive items. The primary strategy for distributive bargaining is value-
1284
claiming, fixed-pie, win-lose mentality where the focus is simply on winning.
1283
See, eg, Gary Davis, International Conference on the Future of Legal Education: Report
to Council of Australian Law Deans (Summary) (2008) 2-8
http://www.cald.asn.au/docs/FutureOfLegEdConfRptSummy.doc> at 26 February 2010.
1284
See generally Lewicki, Sanders and Barry, above n 25; Karrass, above n 919;
Williams, above n 202, Fisher, Ury and Patton, above n 536.

The legal system, or the adversarial system as many call it, is principally a
system based on the same mentality win-lose or it has been for many years
until recently with the incorporation of more ADR processes into the mainstream
of the judicial system. The legal system is considered adversarial because the
trial mentality of win-lose, plaintiff-defendant, or prosecutor-defender, seems to
turn every dispute into a contest of who will win and who will lose. It is also
constantly portrayed as adversarial in the media, in popular culture, and in the
law firm culture. Furthermore, the nature and purpose of the adversarial aspect
has been diluted and misunderstood in light of the historical context in which this
1285
was envisioned, as a means of uncovering the truth.
Because traditional bargaining is still a win-lose mentality and the legal system is
a win-lose system, lawyers are likely to use deception in negotiations if they can get
away with it. Further, the legal ethics codes across a majority of common-law
jurisdictions, to date, provide little or no guidance on how lawyers should behave in
negotiations. Therefore, lawyers might assume the general negotiation conventions are
acceptable posture due to silence regarding alternate acceptable behaviour.
Critics lament the current standard conception model of legal ethics
(adversarial ethics) as an excuse to continue with potentially unethical behaviour. As a
reminder, the standard conception model consists of the principle of partisanship, the
1286
principle of neutrality, and principle of non-accountability (role morality).
Critics argue that the combination of these three principles is the reason why lawyers
1285
1286
See, eg, Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the
Lawyers Role (2009) 3-11 (discussing these three principles of the standard conception model and
describing some of the main criticisms of this model of lawyers role); Luban, above n 1130, 139-178.

are seen as amoral, hold themselves not accountable for their actions in
1287
fighting for their clients interests, and are alienated from ordinary morality.
However, the results of this study show that the views regarding the
principles of the standard conception model are not as simple or conclusive as
they would seem to the outsider or the public. First, there is a difference between
being amoral and immoral. Amoral means that while a person does believe in
the existence of moral principles, the individual has a complete lack of belief in
1288
any sort of existing morality or ethical code. Immoralism, on the other hand,
1289
rejects moral standards and directly opposes morality.
On the basis of this study, it appears that most lawyers are neither
immoral nor amoral. They may have to abide by a role-morality but that is
expected of any profession, especially the legal profession charged with the
highest standards of upholding the availability of pursuing justice for all, not just
for one person or for whom they personally find more favourable, rich, poor, or
famous. Lawyers, even in their capacity as negotiators, have to be able to
withhold their personal morals from infringing upon a potential clients right to
1290
access justice and to make a choice in their defence. In this case, they may
be regarded as adopting not a role-morality but a role-neutral morality.
The results from this study seem to indicate that while critics say lawyers use
the principle of nonaccountability (due to role-morality), this is likely not the case in a
1287
See, eg, Dare, above n 1286, 3 (describing some of the main criticism of the standard
conception); Luban, above n 1130, 139-178.
1288
Ayn Rand, Philosophy: Who ?eeds It (1984) 47-50; Anita Superson, The Moral Skeptic
(2009) 127-159.
1289
See, eg, Ronald D Milo, Immorality (1984).
1290
Dare, above n 1286, 10-12 (discussing how the principle of non-accountability is often
misunderstood and causes lawyers and others to incorrectly assume that the lawyer identifies or
sympathise[s] with their clients goals [whereas] the lawyer might have strong moral objections to a
clients projects, but be forbidden form relying upon those objections by the principle of neutrality.).

majority of situations. The principle of nonaccountability argues that lawyers do
not feel accountable for their actions. The results seem to indicate that it is not
that lawyers feel they are not accountable because, clearly, they face ethical
dilemmas often and can explain those dilemmas, including whether to be
1291
deceptive in negotiations. The results seem to indicate that when lawyers do
face these ethical challenges, there are insufficient resources to help them deal
with these ethical challenges such that they may appear unaccountable or be
perceived as unaccountable. The studies indicate that there is a disconnect
between their exposure to ethical dilemmas and the guidance available to them in
order to effectively and consistently deal with those ethical issues in practice, with
the legal ethics codes providing little direct and practical guidance.
This study challenges the way that the adversarial ethic or standard conception is
viewed, taught, perpetuated, and perceived. This study implores and challenges
practitioners and academia to find new ways to explore, discuss, and educate lawyers
about the standard conception ethic, what it is meant to be, and to help future lawyers to
understand their place in society to understand that by adopting a role-morality, or
rather a role-neutral morality, that is presumably higher than ordinary morality, a lawyer
takes on ethical obligations which might require conduct in negotiations that is above
generally accepted negotiation conventions. Such a critical discussion may serve as the
basis of determining whether the standard conception is no longer applicable or whether,
as Dare argues, the standard conception is merely suffering
1291
See Chapter 2, Section 2.5 (Synthesis of Literature Review) for more information on
the research findings regarding the types of ethical dilemmas lawyers face in practice.

1292
from a lack of poor perception and understanding. Without such a critical
discourse, lawyers, in their increasingly important capacity as negotiators, might
never reach resolution on how they are to act in negotiations and whether the use
of deceptive conduct in negotiations will serve the public and the profession. On
the other hand, by having such a discourse, lawyers can help their clients,
colleagues, academia, and those who come in contact with the legal system to
also live by the standards conducive to a well-ordered society.
8.5 THESIS SUMMARY A0D CO0CLUSIO0
Negotiation skills are an ever-increasing and critical component of a lawyers
practice. Negotiation is also the foundation of other dispute resolution processes, such
as settlement conferences, mediation, and arbitration. Because lawyers negotiate so
often, how they negotiate with clients and colleagues alike is just as important as what
they accomplish during those negotiations. How a lawyer negotiates is directly tied to
negotiation behaviour as reflected by the strategies and tactics employed in the
negotiation. Positive and negative behaviours may create perceptions in the minds of
clients and colleagues about the nature of the legal practitioner as well as the legal
profession. As seen by the studies discussed in Chapter 6, these perceptions, to date,
have been negative as compared with the perception consumers have of similar
professions, especially with respect to the perception of lawyers as ethical and honest.
Prevailing conventions in negotiation theory and principles suggest that
deception is an inherent part of the bargaining process. When applied to legal
1292
Dare, above n 1286, 10-12 (discussing how a good deal of the widespread public
dissatisfaction with the ethical standards of the law profession flow precisely from the
tendency of observers to do what the principle [of nonaccountability] says they should not do
assume that lawyers endorse or sympathise with their clients causes.). Note: Luban, a
foremost critic of the standard conception, as well as other observers generally only refers
to the principle of partisanship and the principle of nonaccountability.

negotiations, these conventions tend to conflict with the lawyers ethical
duties to the courts, fellow practitioners, clients, and the public.
This study was an attempt to question the validity of prevailing notions of
deception in negotiation and to investigate the extent to which lawyers use deception
in negotiation, how ethics codes attempt to regulate such conduct, and whether such
attempts are or can be successful. In addressing the research questions, this study
used a primarily qualitative methodology with a cross-jurisdictional and
multidisciplinary approach that involved a triangulation of theories, methods, and data.
The study consisted of a catalogue of negotiation behaviours, an original cross-
jurisdictional comparative analysis of legal ethics codes, and an original comparative
analysis of the ethics violation cases of a sample common-law jurisdiction.
As a result of the findings and insights obtained through addressing the
research questions, this study recommends implementing a set of integrated
policy reforms in the areas of legal regulation, ethical standard setting and
institutional design. The legal regulation reform proposals are targeted towards
creating greater consistency in the legal ethics codes and behavioural norms on
the ethics of legal negotiation. The ethical standard setting reforms are designed
to establish core values that align the profession and improve the ethical
decision-making skills of current and future lawyers consistent with the legal
regulation reforms. The institutional design reforms are aimed at improving the
enforcement of ethics violations that might involve deceptive or misleading
conduct in negotiations as well as encouraging greater collaboration between the
legal education institutions and the profession so as to align future legal
st
education with what lawyers of the 21 century actually do in practice.

The goal of this integrated approach is to make an incremental yet
measurable difference in the way lawyers do what they do most often negotiate. By
creating an incremental, positive change in behaviour, local variability in negotiation
practice (e.g. use of deception in negotiation) is decreased, resulting in better
personal, professional, and financial performance. In addition, such reforms are likely
to result in greater consistency of expected negotiation behaviour that translates into
increased performance and positive perceptions of legal practitioners. Finally, this
research and subsequent findings provide a rich and substantial basis for future
application in practice, application to theory, and further research.
In light of evolutionary factors such as increased globalisation and
democratisation of countries, the continuing use and necessity of
negotiation as a critical dispute resolution process, and the increased
deployment of mandatory negotiation-based processes such as mediation,
judicial settlement conferences, and arbitration, the time to act is now.
As expressed at the beginning of this chapter, the risk in remaining
silent, in the corner, or on the fence is far greater than the risk to simply take
1293
one step towards integrated policy reform.
1293
Note: This statement is paraphrased from the quote by Anais Nin, above n 727:
And the day came when the risk to remain tight in a bud was more painful than the
risk it took to blossom.

APPE$DICES
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Lakhani
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9-Aug-10
Appendix 1
List of Tables and Figures
Table 2.1: Two Categories of Lies.....................................................................................33
Table 2.2: Two Varieties of Deception.............................................................................34
Table 2.3: Top Three Motivational Objectives of Negotiators ... 120
Table 2.4: Kohlbergs Levels and Stages of Moral Development....................123
Table 3.1: Lawyers Deceiving Clients (Lerman 1990)..........................................165
Table 3.2: Catalogue of Statements and Justifications for Deceptive Conduct

by Lawyers (Wetlaufer 1990)......................................................................173
Table 3.3: Potentially Deceptive Behaviours of Personal Injury Lawyers in

Negotiation (Davis 1994) 178
Table 3.4: Legally Actionable Deceptive Behaviour in Negotiation under s 52

of Trade Practices Act (Pengilley 1993) 182
Table 3.5: Deceptive Tactics Used by Attorneys in Negotiation

(Krivis 2007) .. 185
Table 3.6: Legal Terms of Deception . 189
Table 4.1: United States: Sample American Bar Association Model Rules of
Professional Conduct (MRPC or ABA Model Rules) Regarding
Deceptive and Misleading Conduct .. 201
Table 4.2: Canada: Sample Rules of the Canadian Bar Association Code of
Professional Conduct (2006) Regarding Deception and Misleading
Conduct . 207
Table 4.3: Alberta, Canada: Sample Rules of The Law Society of Alberta
Code of Professional Conduct (2006) Regarding Deception and
Misleading Conduct and Affirmative Duty to Stakeholders.. 210
Table 4.4: Hong Kong: Sample Rules of the Bar of the Hong Kong Special
Administrative Region (2008) and The Hong Kong Solicitors
Guide to Professional Conduct (2008) Regarding Deception
and Misleading Conduct 213

10
Table 4.5: Australia: Australian Bar Association Model Rules
(Barristers Rules) Regarding Deceptive and Misleading
Conduct . 216
Table 4.6: Queensland, Australia: Sample Rules via Legal Profession

Act 2007 (QLD) Regarding Deception and Misleading
Conduct.. 219
Table 4.7: Queensland, Australia: Sample Rules via Legal Profession (Solicitors)
Rule 2007 (QLD) Regarding Deception and Misleading Conduct
. 220
Table 4.8: Cross-Jurisdictional Summary Analysis of Deception in Negotiation

in Legal Ethics Codes 223
Table 5.1: Ethics Violation Cases Alleging Deceptive/Misleading Conduct -

Queensland, Australia (1996 - 2006). 255
Chart 5.2: Ethics Violation Cases Alleging Deceptive/Misleading Conduct -

Queensland, Australia (1996 - 2006) 255
Table 5.3: Ethics Violation Cases Summary of Alleged Deceptive or

Misleading Conduct (1996 - 2006) 256
Table 5.4: Ethics Violation Cases Common Aggravating and Mitigating

Circumstances (1996 - 2006). 258

10
Appendix 2
Queensland Ethics Violations Cases (1996 - 2007) Summary Analysis
2010 Avnita Lakhani - 414 -

9-Aug-10
Appendix 3
Queensland Ethics Violations Cases (1996 - 2007)
Analysis for Aggravating / Mitigating Circumstances

9-Aug-10
Appendix 4
Queensland Ethics Violations Cases (1996 - 2007)
Cases Per Year (Deceptive or Misleading Conduct)

9-Aug-10
BIBLIOGRAPHY
1. Articles/Books/Reports
Adair, Wendi L and Jeanne M Brett, The Negotiation Dance: Time, Culture, and
Behavioural Sequences in Negotiation (2005) 16(1) Organization Science 33-51.
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Aug-10
Appendix 2
Queensland Ethics Violations Cases (1996 - 2007) Summary Analysis
Note: The following is a summary analysis of the Queensland ethics violation cases
alleging deceptive conduct
For confidentiality reasons, names of practitioners and/or any identyfing
information has been omitted. Example in Thesis: 1-S = Case 1 re Solicitor)
No Year
1 1996/1997
(solicitor)
Mead
2 1997
(solicitor)
Smith
3 1997/1998
(solicitor/
partner for
past 5 yrs)
Bax
4 1998
(solicitor)
Williams
(c) 2010 Avnita Lakhani

9-Aug-10
No Year Alleged Violation
5 1998 attempt to suborn Crown

(solicitor) witness/induce to perjure
Gregory
6 1997/2000 use of dishonest means to

(solicitor) further a client's case
Clough (personal injury case)
7 2000 supplying dangerous drug

(barrister) (prior conviction); then intent
Darveniza to decieve court re his
appication/affidavit for
barrister in NSW
8 2000 3 charges of unprofessional

(solicitor) conduct; no charges of
Delaney deception or fraud alleged or
found
(c) 2010 Avnita Lakhani 9-
Aug-10
9 1999/2001 8 charges - false or

(solicitor) misleading affidavits; false or
Wright misleading or recklessly
made statements and
submissions to QLS re
commercial transaction case
10 2001 failure to disclose info

(barrister) relevant to application for
Khan admission (ie lack of candour
in application)
11 2001/2002 2 charges of unprofessional

(solicitor) conduct - failure to keep
Priddle accounting and record of trust
moneys; no charges of
deception or fraud indicated;
no findings of deceitful or
dishonest conduct by court
12 2000/2001 1 charge - giving false

(barrister) evidence on commission
Young inquiry into electoral fraud
13 2003 3 charges - 1 fraudulently

(solicitor) misappropriate client funds;
Whitman knowingly falsely represent
employment of one solicitor
14 2002/2003 7-8 charges of

(solicitor) misappropriation of client
Lowes trust funds + undue delay in
administration of estate; no
charge of dishonesty (but
tribunal finding of dishonesty
on 1 charge)

Aug-10
15 2004 4 charges - breaches of

(solicitor) request for info via Society,
Tunn failure to properly supervise
staff, serious neglect and
undue delay in handling
cases; no deception or fraud
alleged
16 2005 various breaches of Trust

(solicitor) Accounts Act and Trust
Williams Accounts Regulation; no
deception or fraud alleged -
none found
17 2005 aggravated fraud; attempted
(barrister) aggravated fraud - personal
Williams actions affecting professional
standing

Aug-10
18 2005 18 charges of dishonesty in

(solicitor) charging fees and rendering
Baker account of fees charged in
violation of retainer
agreement
19 2006 knowingly misled insurer in

(barrister) connection with claims
Mullins negotiation at mediation;
fraudulent deception
20 2006 swore misleading affidavit

(barrister) used in District Court
Hackett
Aug-10

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What is the thesis about?

What is the thesis about?

What are some of the theories discussed in chapter 2?

What are some of the theories discussed in chapter 2?

Deception as a Legal /egotiation Strategy:

A Cross-Jurisdictional, Multidisciplinary Analysis

1. CHAPTER 1 I/TRODUCTIO/ A/D RATIO/ALE ............................................. 1

2. CHAPTER 2 REVIEW OF LITERATURE ........................ 30

2010 Avnita Lakhani ii 9-Aug-10

3. CHAPTER 3 ALLEGED DECEPTIVE BEHAVIOURS OF LAWYERS ............... 162

4. CHAPTER 4 EFFORTS BY PROFESSIO/AL ETHICS CODES TO REGULATE

5. CHAPTER 5 THE SUCCESS OF PROFESSIO/AL ETHICS CODES I/

2010 Avnita Lakhani iii 9-Aug-10

6. CHAPTER 6 THE FOU/DATIO/ FOR CHA/GE ........................................... 274

7. CHAPTER 7 IMPLICATIO/S FOR LAW REFORM ........................................ 320

8. CHAPTER 8 THESIS SUMMARY A/D CO/CLUSIO/S .................................. 396

2010 Avnita Lakhani iv 9-Aug-10

10. BIBLIOGRAPHY ............................................................................................. 417

2010 Avnita Lakhani v 9-Aug-10

unless otherwise stated.

degree of Doctor of Philosophy by Bond University in Queensland, Australia.

2010 Avnita Lakhani vi 9-

To the best of my knowledge and belief, I hereby declare that this

submission is my own original work, except as acknowledged and cited in the

made to project the contribution of other researchers as my own.

To the best of my knowledge and belief, it contains no material previously published

9 August 2010nita Lakhani

2010 Avnita Lakhani vii 9-Aug-

Throughout this journey, four key individuals have been instrumental to my

First and foremost, Soli Deo Gloria.

I wish to thank my thesis supervisors, Professor Laurence Boulle (Bond

Thank you so very much.

2010 Avnita Lakhani viii 9-Aug-

Publications Arising Out of This Thesis

Conference Presentations Related to This Thesis

Presenter Cairns Law Conference, Cairns, Queensland, Australia (July 2006).

2010 Avnita Lakhani ix 9-Aug-10

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

which prohibit deception, misrepresentation, lying and fraud in any capacity. A

the law and do not serve their clients best interests.

or ever can be successful in light of acceptable negotiation practices which

include some forms of deception.

2010 Avnita Lakhani x 9-Aug-10

in legal negotiation. First, the thesis addresses whether lawyers engage in

four common-law jurisdictions. Third, the thesis presents an original analysis of

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

certain practices in negotiation. Through this understanding, the various stakeholders in

interest whilst also maintaining a successful, ethically-focused practice.

2010 Avnita Lakhani xi 9-Aug-

We are what we repeatedly do. Excellence, then, is not

This chapter provides an introduction and rationale for undertaking this

background to the study is followed by a discussion of the significance of this study

as well as the studys contribution to knowledge. The chapter concludes with an

overview of the research methodology, a statement of the problem, research

questions, hypotheses (where applicable), and organisation of the thesis.