Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics

Hinshaw, Art; Alberts, Jess K.

doi:10.2139/ssrn.1417666

Cited by 4 publications

(7 citation statements)

References 14 publications

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“…In one survey of a national sample of lawyers, 51 percent believed that “unfair and inadequate disclosure of material information” during pretrial negotiation was a “regular or frequent” problem (Pepe ). More recently, another study found that a similarly high percentage of lawyers surveyed believed attorney negotiators would engage in a fraudulent negotiation strategy if a client asked the attorney to do so (Hinshaw and Alberts ). Not surprisingly, the belief that lawyers are unethical is a part of the public consciousness.…”

Section: Resultsmentioning

confidence: 99%

“…Another recent study by one of this article's coauthors closely examined a single negotiation context to learn in more detail how lawyers approach a negotiation ethics dilemma. In this study, Art Hinshaw and his coauthor, Jess Alberts, used a web‐based survey to present a hypothetical negotiation scenario adapted from the scenario in the DONS Negotiation developed by the Program on Negotiation at Harvard Law School (Hinshaw and Alberts ) . Specifically the scenario involves a prelitigation settlement negotiation in which the participant attorney represents a client who believes he is ill with DONS, a fatal disease he contracted from his former girlfriend.…”

Section: Attorneys and Negotiation Ethics: What The Data Showmentioning

confidence: 99%

“…Experiential learning through simulation exercises has been a part of the negotiation teaching tool kit for some time. In the debriefing that follows these simulations, teachers should highlight those areas in which researchers have found practicing lawyers to be particularly weak: identifying material facts in context, understanding the law of misrepresentation, and applying the requirements of the rules of professional conduct in conjunction with competing professional rules and values (Hinshaw and Alberts ).…”

Section: Teaching Strategiesmentioning

confidence: 99%

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Attorneys and Negotiation Ethics: A Material Misunderstanding?

Hinshaw¹,

Reilly²,

Schneider³

2013

Negotiation Journal

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Our research suggests that a true norm of ethical negotiation behavior exists within the legal profession.This conclusion is tempered, however, with the knowledge that a large minority of our research respondents -at times approaching one-third of them -engaged in unethical and even fraudulent behavior. Additionally, the survey respondents were not saddled with the pressures that practicing attorneys typically confront (pressures likely to make people behave less, rather than more, ethically). In an attempt to understand the reasons for such a high frequency of unethical negotiation, we have identified three major contributing factors: too many lawyers have only a superficial understanding of rules that are more complicated than they appear; lawyers frequently take their "zealous advocate" role too far, thereby placing client loyalty above other important values such as respect for truth and justice; and the practice of law and the people who are drawn to it are highly competitive. To address these factors, we suggest approaching the problem from several different angles. In the classroom, we suggest a focus on the relevant legal standards, including a focus on the often misunderstood law of fraudulent misrepresentations. Because many students fail to appreciate the differences between "ethical" behavior, the floor of socially acceptable conduct, and the expectations that others have for how they will be treated, we also suggest that lawyer training programs focus on the important role that personal relationships and one's reputation play in the legal profession, and how falling short in these areas can decrease one's negotiation effectiveness. For the profession itself, we also suggest clarifying the attorney rules of conduct and provide a number of tactics and strategies to defend against lying and deception during negotiation. Finally, we recognize there are certain psychological factors at play that can cause people to engage in behavior inconsistent with their personal sense of ethics. We believe the only way to avoid these lapses is to integrate conscious and reflective practices that can bring ethical concerns to the forefront of lawyers' decision-making and thought processes.

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Section: Resultsmentioning

confidence: 99%

Section: Attorneys and Negotiation Ethics: What The Data Showmentioning

confidence: 99%

Section: Teaching Strategiesmentioning

confidence: 99%

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Attorneys and Negotiation Ethics: A Material Misunderstanding?

Hinshaw¹,

Reilly²,

Schneider³

2013

Negotiation Journal

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“…Before discussing the results of the gender study reported in this Article, it is important to review some of the basic results of the broader study which have already been published elsewhere. 14 We surveyed more than 700 practicing lawyers and asked whether they would agree with a client request to engage in a fraudulent negotiation scheme to settle a case, 15 a clear violation of Rule 4.1 of the Model Rules of Professional Conduct governing the truthfulness of statements to others. 16 Based on the respondents' answers, we came to several important conclusions:…”

mentioning

confidence: 99%

Gender and Attorney Negotiation Ethics

Hinshaw

Alberts

2012

SSRN Journal

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Belief and interest in gender differences are widespread and pervasive. From birth, male and female children are socialized into gender identities and roles that influence how they behave, perceive the world, and are perceived by the world. In addition to dressing their male and female children differently, parents typically play with their infants and toddlers, as well as approve and disapprove of their

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“…A vignette study conducted by Art Hinshaw and Jess Alberts found that nearly one-fifth of their sample of more than 700 practicing lawyers said that, in settlement negotiations with a party their client was suing for transmitting to him a communicable disease, they would not disclose the fact that their client actually did not have the disease if their client asked them not to do so. 230 The Model Rules of Professional Conduct provide ambiguous guidance concerning many questions related to deception in negotiation, but they are clear that an attorney must disclose facts to the counterparty if doing so is necessary to avoid perpetuating a client's fraud. 231 Yet the study suggested that many lawyers are uncertain about how this disclosure requirement relates to client confidentiality principles.…”

Section: Spring 2020]mentioning

confidence: 99%