This blog post is from Hope Cooper.
Hello, I am studying a Bachelor of Laws at the University of Tasmania having just completed my penultimate year. I currently study part time and work full time as a cadet and the Department of Treasury and Finance Tasmania. Working full time in this position as I study law has provided me with great insight into traditional dispute resolution commonly used in the legal profession, as well as the importance and differences of dispute resolution in not only the public sector but in practice within the workforce in general.
Over the next coming years, I look forward to exploring my options further in the public service, as well as taking up opportunities in the private sector where I hope to develop my skills across the dispute resolution board in hope to become an effective and successful advocate. Thank you for taking an interest in my post and please feel free to contact me if you wish.
Hope can be contacted at Linked In
It is no secret that deception as a tactic is commonly used by lawyers within negotiations. Is this because some lawyers can’t help but lie? Do they disregard ethical principles? Is winning such a priority for these lawyers that professional and personal ethics are mute in comparison?
This is a commonly held stereotype of lawyers. Many lawyers even agree with these stereotypes, so much so that lawyers enter negotiations expecting falsehoods throughout the discussions.
In fact, a study in 2005 demonstrated that where negotiators were given incentives to lie, but the option to tell the truth, only two per cent of negotiators chose to tell the truth. The remainder of negotiators either chose to conceal information or actively lied.
Negotiators don’t just deceive for the sake of being deceitful. It’s proven that deceptive tactics are likely to achieve better outcomes. Deception doesn’t necessarily involve blatant lying either. For example, it could include strategically revealing facts, bluffing, avoiding questions or overstating one’s position (all tactics quite stock and standard in the legal profession).
Since all lawyers want the best outcome possible, lawyers who may be ethically against deception may be tempted to step outside of their boundaries to compete. Lawyers are then left in a battle against opposing lawyers where they themselves need to not only deceive their opposing party in order to get the best outcome, but be a better deceiver than their opposing party.
So is that it? Lawyers like to win, in fact, it is their job to get their client the best outcome. Does that mean lawyers are doomed to be deceptive until the end of time? Frankly, no.
Despite the above, it is my argument that lawyers have been let down by lack of clarity about how to balance these dilemmas and their ethical obligations. Negotiation as its own process lacks guidance on ethical conduct. In fact studies have suggested that many lawyers deceive because they are confused as to what constitutes unethical conduct within negotiations.
Yes, whilst it is true that Australia has professional conduct rules which umbrellas over negotiation, it is clear that this alone is ineffective in clarifying what is ethical within negotiations (because deception is still occurring, right?).
Deception may always be a tactic used within negotiations. However, the legal profession needs better ground rules and ethical guidelines regarding negotiation in Australia. Until then, lawyers will continue to be left to navigate the complex relationship of ethics and deception without consistent guidance.