NEGOTIATION ETHICS

Michael Sean Quinn*


Not long ago two lawyers represented clients in a bitter lawsuit. There had been much discovery, many hearings, and considerable negotiations.  As the trial approached L#1 proposed a settlement to L#2 which was even more unacceptable than the last one.  

The recipient of the offer experienced “negotiation rage,” and said (roughly the following), “Go fuck yourself and tell your client to fuck himself too.  And if you are making these recommendations to him, it’s you that’s doing the fucking already.” There was a dispute as to where the statement was made. L#1 said it was said in the courtroom, while L#2 said it was in the hallway. 

L#1 reported the statement to the court and asked that L#2 be held in contempt and disqualified from further representing his client. In his way, of course, L#1 was experiencing some “negotiation rage” of his own.  L#2 wisely stated an apology immediately to both L#1 and the judge (J).  

In the ruling, J noted that where the statement was made was irrelevant; he accepted the apology of L#2, and he noted that L#2 was well known to the court as an honorable L. Therefore, J declined to either hold L#2 in contempt or to disqualify him. 

One wonders what was actually going on here. Being from Texas, I cannot imagine any male lawyer taking very seriously being told to go fuck himself in the midst of a negotiation struggle. (At the same time, I have to grant that the use of this kind of language is in decline as canons of civility take more and more hold on–and become deeper and deeper embedded in–the profession. It was not long ago that what might be called “vivid” language was all the rage.) 

I am guessing, I admit, but this appears much more like some sort of negotiating strategy on the part of L#1 than it does a genuine defense of the integrity of the profession.  It will drive up legal fees for everyone. It will slow the process down, maybe. It will cause fear in the belly of the client of L#2, and maybe L#2 himself. And it will be unnerving to both L#2 and his client. 

There is kind of an absurd, high school, revenge behavior–“I’ve gone and told the teacher on you given the mean thing you said to me.”–going on here. It doesn’t “smell right,” as it were, and my guess is that it does no credit to the integrity of L#1. Then again, I’m engaged in intuitive guess work here.  To be sure, lawyers must remember this: “A lawyer, as a member of the legal profession, is a representative of clients, and officer of the legal system and a public citizen having special responsibility for the quality of justice. ”  

In the grandest of idealist theories one might be tempted to say that telling a lawyer to tell his client that another lawyer has suggested that said client “go fuck himself” might diminish the perceived quality of justice. Then again. . . . 

Perhaps it is important to note that both the Ls were male, as was J.  


*Michael Sean Quinn, Ph.D., J.D.
The Law Firm of Michael Sean Quinn 
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                                             Austin, Texas 78703

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                                E-mail:  mquinn@msquinnlaw.com

Originally posted on 07/13/2016 @ 9:35 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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