Deception in Negotiations: Are lawyers deceptive? Do they lack ethical guidance?

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

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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.

This entry was posted in Dispute resolution by Dr Olivia Rundle. Bookmark the permalink.

About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

3 thoughts on “Deception in Negotiations: Are lawyers deceptive? Do they lack ethical guidance?

  1. Dear Olivia,

    Today’s post on The Australian Dispute Resolution Research Network, “Deception in Negotiations: Are Lawyers Deceptive? Do They Lack Ethical Guidance?” is highly critical of lawyers and suggests that they lack clear ethical guidance. It is based on unsupported statements, contains no analysis of the rules governing Australian lawyers’ conduct of negotiation, and is just plain wrong. The ADRRN should require the author to qualify or withdraw her unsupported statements or pull the post down.

    The post commences, “It is no secret that deception as a tactic is commonly used by lawyers within negotiations.” No support is offered for this damning and damaging statement.

    The post says: “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.” The referenced 2008 study was not specific to lawyers and appears to be based on US experience, where professional conduct rules permit lawyers to lie during negotiations: See American Bar Association, Model Rule 4.1(a). The referenced study thus says nothing about the conduct of Australian lawyers.

    The post says: “Negotiators don’t just deceive for the sake of being deceitful. It’s proven that deceptive tactics are likely to achieve better outcomes.” The same 2008 article is referenced and the same comments about it are appropriate.

    The post says: “In fact, studies have suggested that many lawyers deceive because they are confused as to what constitutes unethical conduct within negotiations.” The (single) referenced study is 20 years old, is not specific to lawyers and examines “the effectiveness of lying versus telling the truth as a negotiation strategy in a business environment”. It thus provides no support for the statement in the post.

    The post says: “[W]hilst 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?).” The rules prohibiting lying by Australian lawyers during negotiations are simple and clear. The attempt in the post to establish that they are ineffective by repeating the opening unsupported statement of the post is despicable. I described the rules applying to Australian lawyers for the purpose of a paper given to the Commercial Law Association in September 2019, entitled “The Ethical Limits of Advocacy at Mediation” and summarised the rules on a single page, which is attached, entitled “Grand Summary of Ethical Limits of Advocacy at Mediation”.

    Quite apart from the professional conduct rules governing the behaviour of Australian lawyers who represent clients at negotiations, the Australian Consumer Law applies to their behaviour and it imposes quite drastic restrictions. For example, it deems misleading or deceptive ANY statement about a future matter (such as “This is my client’s best offer. She/he/it will not make a higher offer”) unless the lawyer has reasonable grounds for making the statement.

    In my respectful opinion, the post does not do justice to Australian lawyers, to the rules governing their conduct during negotiations, or to The Australian Dispute Resolution Research Network.
    Best regards,
    Robert Angyal
    ROBERT ANGYAL SC
    Barrister, Mediator and Arbitrator
    6 St James
    6/169 Phillip Street
    Sydney NSW 2000
    AUSTRALIA
    Liability limited by a scheme approved under Professional Standards Legislation.

    Liked by 1 person

    • Dear Robert,

      Thank you for your comment and your analysis of my research paper summary.

      I would like to clarify that when using the words “deceptive tactics” and “lying” I was not focusing on blatant lying or failure to disclose pertinent facts or information. I was addressing the more grey strategical tactics that can also be described as “deception” (i.e. revealing information at certain points, insinuating something in order to gauge a response from the other party). Chapter 2 of Lakhani’s (2010) PhD thesis Deception as a Legal Negotiation Strategy: a Cross-jurisdictional, Multidisciplinary Analysis Towards an Integrated Policy Reforms Agenda distinguishes between the “white lie” and “distributive lies” which relate to different forms of deceiving as well as different degrees. I think what has been missed in translation when summarising my research paper is that I was not stating that all or even a majority of lawyers who are entering negotiations go in actively seeking to deceive or engage in deceptive tactics. My paper was addressing the fact that some deceptive tactics are almost part and parcel of the traditional model and “art” of negotiation. Literature on negotiation also generally accepts and allows that at least some forms of deception are the “inherent part of the bargaining dance”(Lakhani (2010)).

      Furthermore, Lakhani also asserts that there are assumptions made in society and by lawyers themselves that negotiations may contain these deceptive tactics in order to gain an advantage. Lakhani noted that legal scholars such as Studler, Raffia, White and Mose argue that deception in negotiations can have benefits especially when one is of the opinion that deception is an inherent part of negotiations. Strudler has made similar statements to those in my blog post, such as that deception occurs due to a lack of trust or the assumption the opposing negotiator will use deception.

      I understand that the empirical research referred to in my post is quite old and does in fact relate to an American setting. This research was used as I thought it was important to highlight that negotiators may use tactics such as withholding information or strategically revealing information at certain points. Olekalns, Kulik and Chew (2014) also discussed the complexities of deception in negotiations and the potential triggers that may cause a negotiator to assess the need to deceive and the level of deception required. This study was conducted in the context of “negotiators” generally, not lawyers specifically, however the premise of the internal and external assessment individuals go through in a negotiation setting is important.

      I do maintain my statements that in terms of ethics, the legal profession is governed by multiple and conflicting legal ethic models. Lakhani’s thesis analysed this and highlights the conflicts and the negative effects this may have on the profession. Lakhani further states that bargaining ethics (which may conflict with legal ethics) will also play a part in negotiations. I was trying to get across in my original blog post that Australian lawyers, in the context of negotiations, seem to be caught between traditional bargaining norms and ethical norms.

      Further, a study conducted of professional injury solicitors in Queensland in 1994 revealed that when indicating an offer was the “last offer” 24 per cent of both plaintiff and defendant lawyers used exaggeration and considered it ‘normal’ (‘Negotiating Personal Injury Cases: A Survey of the Attitudes and Beliefs of Personal Injury Lawyers’, Rob Davis (1994) cited in Lakhani (2010)). The study also revealed that 36 per cent of plaintiff lawyers and 39 per cent of defendant lawyers felt that it was often necessary to misrepresent the strengths of their position to get a “good negotiated result”. As Lakhani states in this context of this study – the findings don’t determine that plaintiff and defendant lawyers or professional injury solicitors are more prone to deception, it simply highlights that a large number of these solicitors state they sometimes felt the need to utilise exaggeration or misrepresentation as a tactic, and also that these tactics were held as common amongst them.

      Lakhani’s research also points out that there are gaps in Australian legal ethical literature. Whilst Australia does have a quite comprehensive and uniform legal code of conduct, lawyers are not supported by specific guidelines relating to negotiations. I am not aware of any fact sheets, decisions trees, or comprehensive discussions or analysis relating to the application of legal ethics to certain negotiation tactics from a cross jurisdictional standpoint. I do however have a great interest in learning more as I also believe it is important to keep having conversations that support not only the legal industry but also the perception of the legal industry.

      This is a complex field to navigate and based on my readings I believe the legal profession would benefit from greater consideration of these grey areas and better support for Australian lawyers who are active negotiators.

      Again, I appreciate your comments and critiques.

      Kind regards,
      Hope Cooper

      Liked by 1 person

  2. Pingback: 2020… | The Australian Dispute Resolution Research Network

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