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Gender Issues  Do woman speak differently than men?  Report talk vs. Rapport talk.  Ethic of care vs. ethic of justice.  Do men act differently when.

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Presentation on theme: "Gender Issues  Do woman speak differently than men?  Report talk vs. Rapport talk.  Ethic of care vs. ethic of justice.  Do men act differently when."— Presentation transcript:

1 Gender Issues  Do woman speak differently than men?  Report talk vs. Rapport talk.  Ethic of care vs. ethic of justice.  Do men act differently when negotiating vs. men than woman and vice versa?  Do men underestimate the ability of woman? Do woman underestimate the ability of men?

2 Shadow Negotiations: Using Different Skill Sets  What is the Shadow Negotiation?  Advocacy and Collaboration.  Gender frameworks: Men have certain basic views and skills they use. Woman have others. True?  Woman have been socialized to be mothers and care givers and have not been schooled in the rules of hard nosed bargaining. Is this true?  But, they can learn the rules.  What does Amy Cohen say as a response to this?

3 Some Ideas  Focus on your own skills.. If you are competitive learn to be cooperative and vice versa (even if these come about as a result of your social background).  It is important, and it is your job, to improve your skill sets no matter how you label them and to be observant of other people’s negotiation style (man or woman).  One last thing (my view): woman you will probably never understand men and men you will probably never understand woman and

4 Culture, Nationality and Race  A few things: Learn every thing you can about other cultures. Cultural issues are so complex in this global world that using this to predict behavior is prone to error. Cultural variations might give you some clue or insight into a negotiation. You negotiation with individuals not cultural or national averages.

5 Some Social Norms and Features  Individualism vs. collectivism.  Hierarchy vs. egalitarianism.  Direct vs. indirect communication.

6 Be Culturally Aware  How will you be perceived?  Be very careful when you are trying to analyze a negotiation situation with ANYONE who has a much different background than you.  You must analyze how you will best communicate your views and understand the other side in order to best meet your clients goals.

7 Ethics

8 Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: (a) Make a false statement of a material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 [which deals with lawyer’s obligation to keep client confidences].

9 Know What the Ethics Rules Say About Negotiations  An attorney must not assist or counsel a client in conduct that is fraudulent or criminal. Cal Rules of Prof Cond 3-700; ABA Model Rules of Prof Cond 1.2(d)  An attorney must educate the client on the ethical limits of the attorney’s conduct. ABA Model Rules of Prof Cond 1.4 (a)(5)  An attorney must reveal client confidences only as authorized or as key exceptions provide. Cal Rules of Prof Cond 1.6.  You are required to disclose material facts to a third party when disclosure is necessary to avoid a criminal or fraudulent act by a client unless prohibited by Rule 1.6. Rule 4.1 (b)  An attorney may, or even must, terminate the relationship when continued representation could entail an ethical breach. Cal Rules of Prof Cond 3-700; ABA Model Rules of Prof Cond 1.16.  An attorney must be candid with the court. Bus & P C 6068(d); ABA Model Rules of Prof Cond 3.3.  An Attorney must not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” ABA Model Rules of Prof Cond 4.1. ABA Model Rules of Cond 8.4 (c).

10 Know What the Ethics Rules Say About Negotiations.  Know your client’s attitude about disclosure and negotiation tactics. Is this a bare-knuckle negotiation in which your client will take every lawful advantage? Or, instead, is your client bargaining for a long-term relationship in which candor is an important aspect of success?  Know your personal attitude about disclosure and negotiation tactics. Your attitude should be compatible with your client’s, and both attitudes should be compatible with the ethics rules and the law of fraud.  Know where to turn for timely legal advise and practical guidance. Sometimes, attorneys need advise no less than clients do. Attorneys can consult lawyers who specialize in legal ethics and professional liability issues, call the California State Bar “Ethics Hotline,” and research the legal issues themselves.

11 Five Ethical Rules 1. While representing or assisting a client in negotiations, a lawyer must obey, and advise clients to obey, all substantive rules of law applicable to the client’s activities business. 2. Even if no violation of law would result, a lawyer must not make material misrepresentations, conceal material facts or advise or assist a client in doing so. 3. If a lawyer learns that something that the lawyer or the client previously said was in error or was misunderstood at a time when detrimental reliance can still be avoided, the lawyer must correct the error or misunderstanding, must cause the client to do so, or must resign. 4. It is always proper for lawyers to discuss the moral or ethical consequences of a proposed course of action with a client. In fact, lawyers should be encouraged to do so. 5. If a client asks the lawyer to assist in a course of conduct that the lawyer personally believes to be unlawful or dishonest, the attorney need not comply and may, in fact, be subjected to discipline for doing so.

12 Five Rules of Fraud Prevention 1. Do not commit fraud of assist anyone else to commit fraud. 2. If you know that your client intends to commit fraud or is committing fraud, advise your client against doing so and, even if the advice appears unsuccessful, consider whether to withdraw from the representation. 3. If the objection fails and your client still intends to defraud, terminate the attorney-client relationship. 4. If you learn of a fraud that is not yet completed, consider what steps are permitted or required to prevent the fraud from being completed (including, perhaps, revelation of client confidences). Remember that California’s strict duty of confidentiality (Cal Rules of Prof Cond 3-100) may not permit the attorney to reveal the incipient fraud. If the attorney is governed by the ABA Model Rules, there may be more latitude to reveal confidences. 5. If you learn of a fraud that has been completed, consider what steps are permitted or required to mitigate of rectify the fraud (including, perhaps, revelation of client confidences).

13 Ethical Issues  Model Rule 1.4 requires keeping clients “reasonable informed about the status of a matter”… the comment to Model Rule 1.4 states that when a written offer is obtained it should be promptly communicated to the client. Most practitioners would go further and communicate verbal offers as well.  What is your client asks you to do something that you are not professionally comfortable with? (Divorce cases- you normally voluntarily disclose assets without formal discovery, and your client tells you not to disclose all assets or use a very aggressive approach to negotiation.)

14 The Disclosure Continuum Full, open, truthful disclosure of all information Disclosure of material information Disclosure when other side has erroneous assumptions Misleading statements about material issues Intentional false statements about material facts or law

15 Ethical Issues  You represent a defendant and you have concluded that based on current case law on damages your client’s exposure is $50,000. As you walk out to a judge supervised settlement conference, your paralegal gives you a new case on damages indicating that your client would have liability up to $250,000. Do you tell the judge? The other side?  What do you do when the Judge asks you your settlement authority. You do not have to tell the Judge or the other side what your settlement authority is (Model Rule 4.1). I like to deflect. “We have not made a final determination, I can’t talk about that… client is not ready to reveal that yet”.

16 Factual Errors  You have had a series of negotiations with an insurance company because your client had a bad injury to his back in an auto accident and you have stated that he has been unable to do anything since the accident. Yesterday, your client says he played two sets of tennis with no problems. Do you tell them? How to you respond when they ask, “Can he exercise?”  You Represent the husband in a divorce case. You receive a settlement proposal from the other side that has several errors. A transcription error that undervalues an asset. An arithmetical error that under valuse an asset. A valuation by purchase price of an asset when the market value is now much higher.

17 Examples on Ethics 1. Can you give a false or misleading interpretation about the meaning of a case or a statute for the benefit of one’s client? (A plausible argument, but not one’s true opinion). 2. A misrepresentation about the value of a case (puffery). 3. A false demand… one includes a series of demands that they care little about. 4. A lawyer represents three shoplifting defendants (no conflict) and two are willing to plead guilty. The third said that he wished to go to trial unless charges were dropped. The defense lawyer stated that the two would only plead guilty if the third got off (a lie about what they said).

18 Client Issues  What if your client does not want you to disclose important information. Divorce case or employee case (book page 269 and 270)  Ideas: Discuss it with the client—try to understand it. Tell them you have to tell the truth or deflect it (most often you can deflect it– are you ok with this?) Signal to the other side that this is going to be a formal negotiation or litigation (no cooperation). Withdraw? (I prescreen and discuss this with clients at the beginning of the assignment)


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