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August 13, 2018

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

Comment Submitted via Email

I am a member of the Washington State Bar Association. I am totally opposed to the draft ABA proposal to limit certain activities only to lawyers. I am speaking specifically of the negotiation provisions.

I work almost solely on negotiated agreements. Although I am a lawyer now, I started working on negotiated agreements before going to law school. Law school gave me no skills for negotiation, and all the training I have received since law school has been open to all, with no prior accreditation required.

Law school focuses on adversarial practice. The skills to be a good negotiator, or mediator, are rarely, in my opinion, present in lawyers, and it is not part of their training. The ability to communicate effectively in non-lawyerese is probably the most important, and the concomitant ability to build relationships across the table, which grows from the first, is the second most important skill.

Then, of course, it is crucial to understand the substance of the matter being negotiated, so that you can make decisions during negotiations about the content of an agreement that will not affect your core interest but still might move the overall package along. The other reason for requiring knowledge is to help all parties move off their positions, and into their interests; there are often parties with entirely opposed positions, but once the posturing is set aside, it is entirely possible to satisfy all interests with a little bit of creative tinkering.

Lawyers rarely if ever have substantive knowledge of any issue. Being able to provide information on substance is crucial for a good negotiator, so that choices and options can be adequately weighed. By bogging down the process with someone who has no background information, negotiations will take much longer, and creating a relationship of trust and respect with the other party will be more difficult. I don't negotiate agreements on securities and commercial paper, for instance, I stick with environmental and Indian and water issues, where I know something. That gives my clients value for money! And I don't use standard lawyer tactics, tools, and approaches to gain agreements; working as I do with other people who have interests but who aren't lawyers, that would be completely counter-productive.

By limiting this kind of work to lawyers, you would impose on all parties the need to have lawyers there, which would have a chilling effect -- most lay people are so nervous about "the other side" having lawyers, that they feel at a disadvantage if they don't have one. While this might be great for lawyers' bank accounts, it is not conducive to the conduct of civil society -- where the people who can best represent their interests are themselves, and where conversations in plain English will often get parties to an agreement that lawyers would otherwise obscure.

Lawyers are good to use for drafting binding contracts, once the parties have reached an agreement. But they are not best placed in the centre role of the actual negotiation.

Mediation and facilitation are other related work processes that should definitely not be placed in the lawyers-only basket! Most lawyers that I have seen and tried to work with are hopeless at this. It is simply not the adversarial arena that most lawyers are used to and trained for. "Win-win," clichéd as it is these days, is still a big conceptual leap for most lawyers.

In short, good mediation, facilitation, and negotiation requires people who can step sideways, understand the issues at hand in order to make decisions about trade-offs, build trust relationships across differences, and be flexible, non-adversarial, and non-partisan -- in short, a non-legalistic approach works best. It does take some special skills, but lawyers do not, any more than any other group, have them.

Lisa M. Lombardi
Native Title Specialist
Golder Associates