Ethics in Representing Clients in Alternative Dispute Resolution

Kristen M. Blankley

Almost all of today’s legal disputes are settled out of court. Many disputes are settled through lawyer negotiations, and others are settled in forms of alternative dispute resolution (ADR). Settling cases, while a large component of what lawyers do, requires a different skill-set than litigating cases.

Competency: Understanding the Processes

All lawyers have a duty of competency, which is set forth in Model Rule 1.1. Competency refers not only to legal knowledge but also to “skill, thoroughness and preparation reasonably necessary for the representation.”

Negotiation and mediation, which is essentially a facilitated settlement opportunity, requires lawyers to assess the strengths and weaknesses of their case as well as devise reasonable settlements that will meet the needs of their clients. The type of advocacy necessary for negotiation and mediation involves focusing on reasonableness and settlement options—not trying to convince the opponent about the “rightness” of a position, as a lawyer would with a trial.

The arbitration process is relatively similar to litigation, but with some key differences. The process is less formal, and traditional rules of evidence often do not apply. Arbitrators are more likely to be experts in the subject matter of the dispute, so the evidentiary presentations may be shortened because the neutrals are already familiar with the area of law.

Working Toward Your Client’s Goals

Lawyers are neither “hired guns” for their clients, nor do they have to do every little thing that a client requests. Under Model Rule 1.2, clients make decisions regarding the ultimate goals of the representation, while lawyers generally take the lead on how those goals can be achieved.

As counselors, lawyers are permitted to discuss with the client both legal and non-legal courses of action under Model Rule 2.1. Comment 5 to Rule 2.1 recognizes that a lawyer may be required to inform clients of alternative methods of dispute resolution, when appropriate.

When working with a client, lawyers should learn what it is that the client actually wants to achieve out of the representation. The traditional litigation system is designed to monetize wrongs and losses, yet many clients are not necessarily interested in a monetary award fix to their problems. Some clients are interested in apologies, returning to work, or having a shipment of widgets arrive in time for an important deadline.

ADR processes allow for the possibility of more creative problem-solving than the traditional litigation system. Systems like mediation and negotiation allow the parties to determine their own resolutions to disputes, and the possibilities are only limited by the imaginations of the parties and their attorneys. Arbitrators, too, have the ability to craft awards in equity, and awards such as reinstatement in employment disputes. By understanding clients’ needs and interests, creative settlements through alternative processes may give clients better resolution to their legal problems.

Truthfulness in Alternative Processes

Although these processes are “alternative” to the traditional court system, lawyers’ duties of truthfulness and candor still apply. Under Model Rule 4.1, lawyers have an obligation of truthfulness at all times. That duty prevents us from making false statements of material fact and requires us to correct statements that would otherwise lead to fraudulent omissions. This duty of truthfulness applies whether the lawyer is engaged in private negotiations with another party, is participating in a mediation session, or is otherwise representing a client in court.

In addition to the duty of truthfulness, lawyers also have a duty of candor. Model Rule 3.3 states that a lawyer shall not knowingly make false statements of material facts to a tribunal, fail to disclose controlling legal authority to a tribunal, or offer evidence a lawyer knows to be false. This rule applies before every “tribunal,” and Model Rule 1.0(m) extends the definition of tribunal to include the arbitral setting.

Ultimately, ADR processes are becoming less and less alternative. Understanding both the processes and how to act ethically within those processes is essential for every lawyer, regardless of his or her level of expertise. A young lawyer should learn about these processes, how they meaningfully differ from litigation, and how to represent clients ethically in ADR.

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Kristen M. Blankley

Kristen M. Blankley is an Assistant Professor at the University of Nebraska College of Law.