Attorneys and Negotiation Ethics: A Material Misunderstanding?

In the early 1990s, the American Bar Association commissioned a blue ribbon panel of lawyers to, among other things, itemize the fundamental lawyering skills that law students should be learning in law school. The committee's resulting work product, popularly known as the MacCrate Report, identifies “recognizing and resolving ethical dilemmas” as one of these fundamental skills (American Bar Association Section of Legal Education and Admission to the Bar 1992). Surprisingly there has been little empirical study of attorneys' ability to do this in the negotiation realm until recently, when we conducted three separate studies on the topic. As explained below, our respective findings reveal professional norms of ethical negotiation behavior. At the same time, our results indicate that a significant number of practicing lawyers fail to apply negotiation ethics standards in typical negotiation contexts.

Each of us independently initiated these negotiation studies in order to both determine what is actually going on in lawyer negotiations and help us to improve our teaching of negotiation ethics. The role of ethics in negotiation practice is important to each of us for several reasons. First, few disputes are resolved through the courts anymore. Negotiation — or its cousin, mediation — resolves the vast majority of legal disputes. The other side of legal practice, transactional law (e.g., mergers and acquisitions, real estate, or other similar corporate work) involves even greater amounts of negotiation. We believe that negotiation itself is a crucial component of good lawyering and, therefore, a crucial activity for measuring ethical behavior among lawyers more generally.

Second, each of us teaches negotiation from a problem‐solving or integrative perspective. The perceived weakness of this approach is that it can be taken advantage of by less scrupulous negotiators. Therefore, it is important to understand what exactly those scruples are that we value and seek to encourage. Finally, we want our students to have the skills to both behave ethically themselves and defend against those who do not.

Finally, we need to understand why and how lawyers make choices in negotiation contexts. As law professors, we want our students to become successful lawyers and to practice law with honor and dignity. Presuming our students are successful in this task, they, in turn, protect and enhance the dignity of the profession. We believe it worth our while to do what we can to enhance the credibility of the legal profession.

Helping students develop their professional judgment, which includes a solid grounding in ethics, is no easy task. Law students come to us in various stages of professional development. In our negotiation classes, law students engage in behavior that runs the gamut of ethical and unethical practices. Naturally this is to be expected as they make mistakes trying to master the professional conduct rules and apply them in real time. What troubles us is the surprising number of students who engage in patently fraudulent conduct but have absolutely no idea that what they are doing is in the least bit wrong. This happens every semester, and our concerns are not based on the behavior of just one or two individuals. We believe this behavior reflects a number of different phenomena:

• the attorney rules of professional conduct governing negotiation, which instruct that deceit, misdirection, dissembling, and lying are “ethical” in some circumstances;

• the lack of understanding that personal relationships and reputations are an important aspect of the legal profession;

• an insufficient focus on fraud in the law school curriculum; and

• the hypercompetitive environment of law school and legal practice.

Because students pay little attention to sanctimonious lectures about ethics, we tackle each of these factors head on using hypothetical situations and role‐play scenarios, which guarantee vibrant class discussion. But we have each also felt it was important to understand if what we were seeing from law students was reflected in practice.

Despite our similar concerns, we each came to this topic individually. Two of us updated a 1988 survey of fifteen negotiation and/or legal ethics experts. The third author used a role‐play negotiation highlighting negotiation ethics with students in class and then discussed the class results with practicing lawyers to get their reactions. The wide‐ranging responses from these lawyers suggested that testing the same scenario with practicing attorneys could produce interesting results. In our studies, we found that attorneys do seem to share some norms of ethical negotiation behavior. At the same time, we know that lawyers (and anyone else) answering survey questions are more likely to believe that they will act ethically when presented with ethical dilemmas in the future than is actually the case. The real‐world pressures of money, time, pleasing the client, and keeping your job do not exist in these hypotheticals.

With those caveats in mind, in this article we report the common threads in our respective findings and recommend ways to help both law students and practicing attorneys develop their abilities to recognize ethical dilemmas in the negotiation context.¹

In 1988, Larry Lempert surveyed fifteen lawyers across the country (eight law professors, five practicing lawyers, one U.S. district court judge and one U.S. magistrate judge), asking them to respond to four different negotiation scenarios presenting various ethical issues (Lempert 1988). In 2008, Peter Reilly replicated this study using thirty lawyers located throughout the United States, among them eight law professors, fifteen practicing lawyers, and one federal judge (Reilly 2009). Likewise in 2009, Andrea Schneider replicated the Lempert study surveying ninety‐seven practicing lawyers in Milwaukee. The results from all three studies appear below.

The first survey question involves the issue of settlement authority. Questions of settlement authority in a negotiation can be difficult. If the attorney reveals the amount at which she is authorized to settle, she is effectively settling for that amount. The pressure to lie is thus clear, particularly if the attorney is not adept at deflecting this type of question. On the other hand, straightforward denial of explicit authority is not permitted.

Here is how the American Bar Association's Rules on Professional Responsibility parse this issue. Generally speaking, an attorney's valuation of a claim and a party's settlement intentions, while important in a negotiation, are enumerated exceptions from consideration of what constitutes a material statement in negotiations. The specific limits of the authority that a client has given a lawyer to settle a case, however, is considered a material fact (ABA Committee on Ethics and Professional Responsibility 2006).

Question One in each study asked:

The correct answer to this question is “No” according to the ABA Opinion 06–439. In Table One, we see that a clear majority of respondents to the two more recent studies answered the query correctly, but a sizeable minority of each sample population answered it incorrectly.

In the Schneider study, participants were asked to explain the reasoning behind their answers. For this question, a typical “no” response explanation was “You cannot in good faith lie about your authority when directly asked that question. You can respond by indicating your client doesn't value the case at that amount, etc.” The typical “yes” response was “You should not be required to show your hand in a negotiation.” But one respondent went so far as to write “First, I'd never answer that question. To do so is stupid. Second, there is nothing that prohibits you from misrepresenting your settlement authority.”

Questions Two and Three each deal with the representation of material facts in a negotiation. The definition of “material” is crucial to any analysis because only “material” facts fall under the requirement of truthfulness. (Attorneys may lie about other facts in a negotiation that are not considered “material” without violating the rules.) Materiality is generally understood as information a reasonable negotiator would find important in deciding what course of action to take in the negotiation. This includes the particulars of the issue in dispute, the damages claimed, and any other facts upon which the deal is structured. (For example, in a negotiation for the purchase of a business, that firm's financial records are material facts.) In Question Two, the potential material fact involves an injury in a presumable tort case.

Question Two in each study asked:

In this scenario, the health of the client's knee is the critical issue; thus, descriptions of the knee's health are material to the negotiation. Saying that the client is disabled suggests that the injury is much more serious than it actually is. The proper answer is “no.”

As shown in Table Two a majority of the respondents answered the query correctly.

In the Schneider study, typical “no” responses included such explanations as “If you can ski, you are not disabled.” In contrast, typical “yes” response explanations included “Disabled is a relative term. Perhaps the client is out skiing but she is not skiing as well or is inhibited from doing other things that she used to be able to do.” Another more finessed response pointed out, “I wouldn't tell an unprompted, straight‐out lie to opposing counsel. I would say ‘injured’ instead.”

Question Three also deals with the issue of material facts and which facts are necessary in order to make a claim of emotional distress (a particular claim under tort law).

Question Three in each study asked:

For reasons similar to the correct answer to Question Two, the correct answer in this scenario is “no.” The clients' state of mind is the critical issue for the emotional distress claim, so statements describing their mental distress are material to the negotiation. Stating that they have severe emotional distress would be impermissible lying.

As shown in Table Three, a majority of the respondents properly assessed the situation and interestingly, the proportion of respondents answering the question correctly increased both since the original survey and then with the broader base of respondents in Schneider's survey.

For this question, typical explanations for a “no” response from the Schneider study included “this is a lie” or “20:4.1” (a reference to the Wisconsin Rules on Professional Responsibility). A typical explanation for a “yes” response was “The answer is — always — it depends. What was their emotional state after the loan was pulled? Was there extreme emotional distress at that time?” The most cynical response was “In a negotiation, such a statement would probably be taken with a grain of salt without documentation that substantiates the claim. In court, I would not make such a claim.”

Finally, Question Four concerns omission, which receives a slightly more nuanced treatment in the Rules of Professional Responsibility. According to those rules, an omission of a material fact can also be unethical in certain cases. But more importantly, the law of fraud for both tort and contract law requires correction of a misimpression (Restatement (Second) Torts, §551(2)(e) and comment l 1977; Restatement (Second) Contracts, §161(b) 1981).

The final question in each study was:

Generally speaking, a lawyer is not responsible for an opposing counsel's misunderstanding of the facts surrounding a negotiation, and there is no duty to correct that misunderstanding. However, the erroneous statement is the only reason why the other party is making this particular contract offer. In this situation, silence in the face of the mistaken statement effectively confirms that the statement is true. The correct answer to the question is thus “no.” As shown in Table Four, a majority of the respondents properly assessed the situation.

Typical explanations for a “no” response included “An attorney has a duty to correct false information” and “Misrepresentation in mediation is just as unethical as misrepresentation to a court.” Typical “yes” explanations included “It is the other attorney's job to do due diligence — not yours” and “It's really not my duty to perform opposing counsel's job.” A typical equivocating response was “Your responsibility and your duty are to your own clients, not to correct the incompetence of your opposing counsel and his inability to value the business. Without additional context, I would assume that nothing I've said has led opposing counsel to draw these incorrect inferences regarding the business.”

Another recent study by one of this article's coauthors closely examined a single negotiation context to learn in more detail how lawyers approach a negotiation ethics dilemma. In this study, Art Hinshaw and his coauthor, Jess Alberts, used a web‐based survey to present a hypothetical negotiation scenario adapted from the scenario in the DONS Negotiation developed by the Program on Negotiation at Harvard Law School (Hinshaw and Alberts 2011).² Specifically the scenario involves a prelitigation settlement negotiation in which the participant attorney represents a client who believes he is ill with DONS, a fatal disease he contracted from his former girlfriend. In the scenario, all parties have thus far agreed that the girlfriend did infect the client, and the negotiation seeks to answer only the question of how much the girlfriend will pay to prevent the plaintiff from filing a lawsuit.

The online questionnaire places respondents in the moments before the settlement negotiations begin. At that time, the client reveals a critical new fact to his attorney — the results of his tests were false positives. He does not have the disease after all. Because he is still angry and wants to punish his former girlfriend for her reckless behavior, the client asks his attorney (the survey participant) to refrain from revealing during the negotiation that he does not have the disease. The survey begins by asking participants if they would or would not agree to the client's request.

In this situation, also known as the late‐acquired information problem, the client has a legal duty to his former girlfriend to correct her mistaken belief that he has DONS. Essentially the client is asking the attorney to engage in a fraudulent negotiation scheme, to allow the other side to believe he has DONS when he does not, in order to receive a more lucrative settlement. Agreeing to the client's request is problematic on several levels — a representation that the client has the disease is a fraudulent statement, and failing to correct the defendant's mistaken impression is engaging in fraud by omission (Restatement (Second) Torts, §551(1) and (2)(e) and comments h and l 1977). Both of these negotiation strategies constitute clear violations of the Rules of Professional Responsibility for lawyers. Furthermore, any settlement agreement would be void under contract law (Restatement (Second) Contracts, §164 1981).

In response to the client's request, 62 percent of the 734 respondents said they would not agree to such a request, while 19 percent said they would agree with the client's request and the remaining 19 percent were unsure how they would respond. To determine why nearly one‐fifth of the respondents agreed with the client's request, the questionnaire asked those participants to rate the importance of a number of various legal principles and negotiation strategies that may have influenced their decision making.³ The three justifications for agreeing with the client's request that respondents ranked as most important were the following: the information was protected by the professional rules of conduct regarding client confidences, the information was protected by the attorney–client privilege, and the client had specifically requested that the information not be disclosed. All of these justifications indicate a misunderstanding of the professional rules of conduct.

Lawyers who either refused the client's request or were unsure how they would respond (a total of 592 respondents) were asked a follow‐up question in which the hypothetical situation was changed slightly. In this second scenario, the client requests that the attorney disclose his disease‐free status only if directly asked about it. Thus, if the opposing counsel specifically questions whether the client has the disease, the lawyer has the client's permission to disclose the truth.

Although this condition allows for disclosure of the critical fact in a limited circumstance, it does not fix the problem because it remains quite possible that the opposing party's mistaken belief may go uncorrected. The client and his attorney have a legal duty to provide this critical information. When this subset of respondents was presented with the conditional request to refrain from disclosing the truth unless asked directly, 64 percent indicated they would refuse the request, 13 percent indicated that they would agree, and the remaining 23 percent indicated that they were unsure what they would do.

To sum up, when faced with a client's request to engage in a fraudulent settlement negotiation scheme, 30 percent of the entire set of respondents agreed to do so in one of the two situations. Only half of the respondents, exactly 50 percent, followed the proper course of action and refused both client requests, and 9 percent were unsure how they would respond to both requests. The remaining 11 percent of respondents refused one of the client's requests but were unsure what to do in response to the client's other request.

These studies paint an interesting picture of the world of applied ethics in what has been called the quintessential lawyering activity (Griswold 1956). When we look at the three most recent studies together, we see several trends emerge.

In all but one case, the majority of attorneys indicated they would handle the hypothetical situations in the appropriate way, and in that exception nearly a majority (50 percent) reported they would do so. Ethical behavior appears to be a strong norm in the Reilly and Schneider studies, with slightly more than 60 percent of respondents reporting they would have made the correct choice on two of the questions and more than 75 percent answering the other two questions correctly. In the Hinshaw and Alberts study, half of the respondents answered both questions correctly. We believe these results indicate true norms of ethical negotiation behavior among attorneys; these findings are also similar to those of other studies that examined lying in negotiation (Murnighan et al. 1999).

It is important to remember, however, that these surveys and simulations do not replicate the pressures inherent in legal practice. No clients were complaining or exerting other pressures on the survey respondents. The prospect of financial gains, advancement potential, or any other business considerations did not complicate anyone's choices. Thus, while we think the norm itself should hold under real‐world practice considerations — as a goal or aspiration of how an attorney would like to behave or believes she would behave — the number of lawyers who would make the appropriate choices in such real‐life situations would likely be lower. Furthermore, it seems logical that those who answered the various queries incorrectly, and did not even aspire to make more ethically appropriate choices, would not decide to behave more ethically in actual negotiations — in actual practice adherence to ethical rules tends to decrease (Shell 1999).

In these studies, we sought to determine how attorneys would apply the ethical negotiation standards in context. Even if we assume that our results accurately reflect actual behavior, a disturbing number of our study respondents answered the various queries incorrectly. What makes these numbers troubling is that only one of the scenarios, Question Four in the Reilly and Schneider studies (whether the attorney needed to correct the bank's belief that the plaintiffs had gone out of business), can be considered anything near to being a close call. The degree of confusion or misunderstanding we uncovered is disconcerting. The standard at issue is low: to refrain from engaging in fraudulent misrepresentations. That such a high number of lawyers report they would engage in dubious conduct should concern us all. First, this only increases cynicism toward the profession and the justice system. Second, one could justifiably worry that the clients who have “honest” lawyers are not being well served. And, finally, the health of the legal system relies on the appropriate behavior of those sworn to uphold it. These findings should alarm those tasked with enforcing rules that prohibit misrepresentation.

Based on our findings, we conclude that practicing lawyers who simply make mistakes when applying these standards (as opposed to those who consciously make the deliberate decision to break the rules and lie) do so for one of two reasons. Either they overthink the professional rules because they can be confusing or they have only a superficial understanding of the ethical requirements. In either case, these errors reflect a tension inherent in the legal profession's two most cherished values: a commitment to the client and a commitment to justice.

The importance of being loyal to clients is consistently inculcated in law students. Concepts such as zealous advocacy (“make your best argument”) and confidentiality (the sanctity of attorney–client privilege) are emphasized and scrutinized in course after course that teach students “how to think like a lawyer.” Concepts of justice and ethics are emphasized, but usually in the abstract and not in conjunction with concepts of client‐centered advocacy.

In legal practice, business demands have pushed achieving the best possible results for the (usually paying) clients to the forefront, resulting in an emphasis on a lawyer's total commitment to the client. In fact, many lawyers now believe that loyalty to their clients is their “first and only” responsibility (Gaetke 2006). Particularly in harder economic times when they fear losing clients, lawyers may be more willing to lie on a client's behalf than they would on their own. (Studies have shown that threat perception increases the likelihood of deceptive behavior; see Robbennolt and Sternlight 2012). One scholar has even suggested that dishonesty is so prevalent among attorneys in negotiation that all attorneys owe it to their clients to assume that the other party's attorney will not be truthful in a negotiation (Craver 2012).

Every step of participation in the legal profession, from getting into law school to landing one's first job, to achieving visible professional success, is decided through competition. And the profession tends to attract competitive individuals. Add negotiation — which can bring out anybody's more competitive inclinations — to this mix and the result is the quintessential competitive lawyering activity.

For lawyers, the competitive pressures of bargaining can push ethical concerns into the background, sharpening the attorney's focus on such values as zealous advocacy (Tenbrunsel and Messick 2004). This is most apparent in lawyer discipline cases when attorneys defend their egregious behavior by claiming it is condoned in the rules of professional conduct. Recently, in an attempt to dismiss a fraud case against him, a lawyer claimed that under attorney confidentiality rules, he had no duty to reveal his client's ongoing fraud — a serious misunderstanding of the current rules (Braga 2011).

Although our studies did not focus on specific cognitive psychological factors that can lead lawyers into ethically challenging waters, we believe these phenomena explain the results of our studies, at least in part. For example, bounded ethicality — in which we do not examine a decision from an ethical standpoint unless we have already determined that our decision is “ethical” — often leads lawyers to act in ways that are inconsistent with the ethics they have expressed. Thus, unless lawyers are primed to consider ethics as part of the decision‐making process in any given case, ethical concerns may not factor into the decision at all (Tenbrunsel and Messick 2004).

Similarly, lawyers make forecasting errors, in which they fail to recognize that the pressures of law practice can create ethical dilemmas. In other words, lawyers, like others, predict that they will act ethically when faced with a dilemma in the abstract. If, however, that dilemma actually arises, a number of people studied fail to fulfill their optimistic assumptions about how they will behave (Diekman, Tenbrunsel, and Galinsky 2003).

Additionally, many unethical actions may reflect self‐control depletion (Gino 2011). According to this theory, a person has reserves of self‐control, but as one engages in self‐control tasks throughout the day (or throughout the representation of the client), those reserves are depleted and one's ability to recognize and respond appropriately to ethical challenges decreases. Thus, the likelihood of unethical behavior increases.

Finally, people may find themselves sliding down ethical “slippery slopes” in which an early ambiguous decision is used to justify later unethical actions (Schiltz 1999). Gaining a better understanding of how seemingly ethical lawyers may make unethical decisions could help law students make more ethical decisions when they become practicing attorneys.

As our three studies show, the primary norm is consistently to obey the rules governing attorney negotiation conduct. That said, too many lawyers make simple mistakes when applying the rules, some because of confusion and others because of competitive norms or cognitive errors. To strengthen adherence to the rules, we suggest some strategies for both negotiators and negotiation instructors.

For negotiators, the most important steps are to learn the rules regarding truthfulness and to create rapport, essentially a positive professional relationship, with one's counterpart (Reilly 2009). These strategies work to prevent the lawyer from lying (unless she or he consciously chooses to lie) and to prevent his or her counterpart from lying as well.

Learning and understanding how the rules work is painless, but changing one's subconscious responses and reactions is difficult. As outlined above, the structural and psychological encouragements to lie are important to comprehend and to counter. Becoming a reflective and thoughtful negotiator is one way to address these semiautomated systems, as is understanding how one's actions reflect and form our values. Consciously acknowledging that there is an ethical component in most decision making makes the ethical implications of one's decisions more difficult to ignore. Most individuals do not enter a negotiation intending to be unethical.

Furthermore, attorneys need to recognize that their own affirmative statements are made in context — and that contexts can change. They also need to remember that different lawyers interpret actions and the rules differently — others might view one's actions as unethical even when one is convinced otherwise. A common strategy we have taught our students is to “gut check” their actions by contemplating whether they would be comfortable with their behavior being reported on the front page of the New York Times, being posted on Facebook, or being described to their grandmother (Schneider 2013).

But working on oneself is only half of the equation. Lawyers need to be prepared for a counterpart's questionable tactics. The following strategies can be helpful in defending one's self (or one's client) against lying and deception in negotiation (Reilly 2009).

One defensive technique is to persuade the responder to share lots of information. This includes using “encouragers” such as “I hear you . . .” or “Go on . . .” coupled with such requests as “Could you tell me more about that?” or “Can you flesh that out a bit?” Also, asking less direct or seemingly nonthreatening questions can yield truthful and valuable information (Malhotra and Bazerman 2007). Research has shown that people are more inclined to lie by omission (not revealing the whole truth) than by commission (falsely answering a question when asked), so when they are asked to elaborate and thereby make direct statements that are lies, some people cannot do it and will back away from earlier statements.

Asking questions such as “What do you base that number on?” or “Is that according to industry standard?” is essentially asking the other party to justify his or her position using objective standards. People will be less likely to deceive if they know from the start of the negotiation that you will be asking for objective criteria and standards.

The simplest way to get information is to ask for it, but sometimes the most obvious (and crucial) questions do not get asked (or answered) during a negotiation. Prior to negotiating, the negotiator should prepare a list of the questions she wants answered, in order of importance. During the negotiation, she should listen carefully to the responses provided, as many will be mere attempts to evade answering the question. The negotiator must continue grilling until the information she needs is either revealed or protected in a very direct manner. Asking numerous questions on the same topic is one way to thwart dishonesty — it can be difficult to produce lies that are consistent with each other (Malhotra and Bazerman 2007).

Research indicates that people — even such “experts” as police officers — are poor at detecting liars in a negotiation (Kassin, Meissner, and Norwick 2005). Research also suggests, however, that one of the more reliable indicators of lying is when one's behavior suddenly changes (Mann, Vrij, and Bull 2002). For example, if a normally aggressive negotiator suddenly becomes more conciliatory and soft‐spoken, it could indicate that he is engaging in deceptive behavior. Thus, developing long‐term relationships with other negotiators can help a lawyer develop a sense of their “baseline behaviors” and some ability to determine when that behavior has changed.

Used at critical moments in the negotiation, one can ask the “come clean” question: “Is there anything unknown to me or to my client that could have a material impact on this case?” This can be quickly followed by “Getting things out on the table early tends to prevent headaches down the road.” Negotiators on the other side of the table might attempt to deflect the question or change the topic, so one should be prepared to ask the question more than once (perhaps with a new approach and a different wording) (Schweitzer and Croson 2004). Then, if the other side continues to answer in a manner that leaves one feeling that the response is not appropriately truthful, forthcoming, or transparent, one could be more aggressive in prompting an answer (or a more thorough answer) by reminding the other side that any material misrepresentation uncovered later could render the agreement moot or could lead to sanctions, renewed litigation, and/or other legal actions.

The above strategies and tactics could help minimize one's risk of being exploited in a negotiation should other parties attempt to lie or deceive. Our suggestions build on the idea that information exchange plays a pivotal role in all negotiations. Indeed, information is the lifeblood of any negotiation and the foregoing strategies, which seek to influence information exchange, are extremely important in the process of defending one's self (or one's client) against lying and deception.

Our teaching strategies should mirror our goals for negotiation strategies: they should minimize the chances that our students will lie in negotiations when they become practicing attorneys and also minimize the chances that they will become the victims of other lawyers' lies. Teaching the essentials of negotiation ethics can leave instructors unsettled because some of these lessons seem counterintuitive and contradictory to other lessons learned in law school — indeed, in many instances deceit, misdirection, and lying are “ethical” negotiation tactics under the rules of professional conduct.

In addition, some professors are uncomfortable with teaching techniques they perceive to be “preaching” and with enforcing a level of morality. We argue that this advocacy on behalf of ethics is needed to balance the overly competitive impulses that “thinking like a lawyer” might encourage. We must also acknowledge to our students that it can be difficult to balance the requirement that one zealously represent one's client with one's own moral impulses and instincts. Students need to have opportunities to discuss, explore, and reflect on these issues before they can be expected to manage them in practice. Recent studies have reported high levels of career dissatisfaction among American lawyers (Ward 2007). We suggest that achieving greater congruence between one's own values and the ways in which one practices law may be one way of improving the job satisfaction of our graduates.

Furthermore, generally the rules of professional conduct are written to provide a “floor” for behavior, a minimum standard, rather than to be aspirational goals of best practice. Thus, even “ethical” conduct under the rules may not offer clients the higher level of care that they often expect. As negotiation instructors, we should teach students how to identify and resolve negotiation ethics problems in context. We know that displaying higher standards of professionalism will enhance perceptions of our students' effectiveness as lawyers (Schneider 2002; Hamilton and Monson 2011).

In negotiation classes, we can train students how to prepare answers for the most difficult questions and to avoid inadvertent lying. In many cases, lawyers deceive to avoid telling unpleasant truths (about the weaknesses of our case, damaging facts, etc.), but if they prepare answers in advance, they may be less likely to lie because they feel “trapped.”

Another important lesson to teach our students is to focus on the broader implications of lying in terms of reputation and lost effectiveness in negotiation (Tinsley, Cambria, and Schneider 2007). Perceptions of a negotiator's ethicality — his trustworthiness and willingness to follow the ethical rules — have a direct impact on reputation. And reputation is directly linked to effectiveness in negotiation (Shell 1999). We should at minimum ensure that students understand the Professional Rules of Responsibility well enough to honor them and not actively deceive the other side in contravention of those rules. Aiming higher, we should train our students to consider the likely ramifications of deceptive behavior, including the impact on their reputations. Finally, we should teach them that “best practices” in negotiation would include actually being trustworthy, treating the other side fairly, and establishing a working relationship with the other side when feasible.

Third, being both trustworthy and trustful includes defending oneself and one's client against the unethical behavior of others. Developing a minimal level of skill in this area would involve working under the assumption that opposing attorneys will sometimes lie and thus it is necessary to consider how to respond. Aiming a bit higher, we should train our students to ask defensive questions, double‐check their assertions, and write compliance measures into their settlement agreements and contracts. Finally, we should teach them such “best practices” as how to build relationships with other attorneys that are strong enough to discourage deception (Schneider 2012).

An effective and popular method of teaching negotiation ethics is to employ negotiation role‐play exercises followed by discussion (Hinshaw 2011). Experiential learning through simulation exercises has been a part of the negotiation teaching tool kit for some time. In the debriefing that follows these simulations, teachers should highlight those areas in which researchers have found practicing lawyers to be particularly weak: identifying material facts in context, understanding the law of misrepresentation, and applying the requirements of the rules of professional conduct in conjunction with competing professional rules and values (Hinshaw and Alberts 2011).

In addition to using simulation exercises, instructors must place their lessons into a broader context of professional interactions. An excellent tool for doing this is the Reputation Index (Welsh 2012). The Reputation Index is a grading tool created by Roy Lewicki (2007) for use in his business school negotiation courses; it measures one's reputation as a negotiator and the long‐term effects of one's reputation on one's negotiation effectiveness. The index works by asking the students to identify classmates who have developed positive and negative reputations as negotiators over the course of the semester. The index may or may not be counted toward a student's final grade, but if it is, instructors should keep the percentage small (less than 10 percent) to guard against “popularity contests.” Whether the Reputation Index is part of the class grading criteria or not, it helps persuade students that their behavior will ultimately influence their reputation and effectiveness as negotiators.

The Reputation Index may help students realize what they really are not getting away with. If one thinks past behavior was acceptable and effective, she or he has little motivation to change. Likely, over time if a person “pushes the envelope” of questionable behavior a little each time, he or she risks winding up in unethical territory (Tenbrunsel and Messick 2004). The Reputation Index can help students see these patterns and break them, and come up with new, better, more ethical strategies by giving them an opportunity to see how their negotiation counterparts have received their strategies.

Few skills play a more central role in the practice of law than negotiation — it is a fundamental task in all aspects of the legal profession. It appears, however, that many attorneys believe their fellow lawyers are not always honest and straightforward when negotiating. In one survey of a national sample of lawyers, 51 percent believed that “unfair and inadequate disclosure of material information” during pretrial negotiation was a “regular or frequent” problem (Pepe 1983). More recently, another study found that a similarly high percentage of lawyers surveyed believed attorney negotiators would engage in a fraudulent negotiation strategy if a client asked the attorney to do so (Hinshaw and Alberts 2011). Not surprisingly, the belief that lawyers are unethical is a part of the public consciousness. The American Bar Association found that only 20 percent of Americans consider lawyers to be “honest and ethical” and, furthermore, “the more a person knows about the legal profession and the more he or she is in direct personal contact with lawyers, the lower [his or her] opinion of them” (Hengstler 1993). It is with this backdrop that the three of us made negotiation ethics a part of our respective research agendas.

Our research suggests that a true norm of ethical negotiation behavior does exist within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of our research respondents — at times approaching one‐third of them — were willing to engage in unethical and even fraudulent behavior, and these respondents — who merely answered survey questions or participated in role‐play simulations — did not confront the pressures of real‐life negotiations, which could be expected to make people behave less, rather than more, ethically.

In an attempt to understand the reason behind such a high level of unethical negotiation, we have identified three major contributing factors: too many lawyers have only a superficial understanding of rules that are more complicated than they may first appear; lawyers take their “zealous advocate” role too far, thereby placing client loyalty above other important values such as justice; and the practice of law is highly competitive as are the people drawn to it.

To address these factors, we suggest approaching the problem from several different angles. In the classroom, we have suggested that teachers emphasize the rules of professional conduct that govern negotiations, with a focus on the often misunderstood law of fraudulent misrepresentations. Many students fail to appreciate the difference between “ethical” behavior, the floor of acceptable conduct, and the higher expectations others have for how they will be treated. Personal relationships and one's reputation also play an important role in the legal profession, and students need to understand how falling short in these areas can decrease one's negotiation effectiveness.

To improve ethical conduct among practicing attorneys, we have recommended clarifying the attorney rules of conduct. We have also suggested a number of tactics and strategies to defend against lying and deception during negotiation. Finally, we recognize there are certain psychological factors at play that can cause people to engage in behavior inconsistent with their personal sense of ethics. We believe the only way to avoid these lapses is to integrate conscious and reflective practices that can bring ethical concerns to the forefront of attorneys' decision‐making and thought processes.

Our work in the area of negotiation ethics seeks to improve the understanding of negotiation ethics and promote more ethical negotiations among attorneys. But we also seek to protect and enhance the dignity of our students, individual lawyers, and the profession as a whole.