Ethical Considerations in Dispute Resolution Practice

Thursday, October 29, 2015

Kimberlee KovachKovach Dispute Resolution

www.kimkovach.com

kim@kimkovach.comk2kovach@yahoo.com

Overview & Agenda• Focus on the Lawyer Representative rather

than the Neutral• Numerous different Codes or Standards for

Neutrals, though issues regarding enforcement

• Examination of potential Ethical Issues of the Lawyer (and the Client) in Mediation / Negotiation

• Concerns and Issues in Arbitration Practice • Process Understanding • Disclosure Matters• Partiality and Appearance of Bias

Overview & Agenda, cont’d.

• Standards in Transactional Negotiation • Negotiating a Dispute Resolution Clause

• Contracting for Ethics / Standards of Conduct

• Potential of Issues Arising in Multi-Jurisdictional Practice • Mediation• Arbitration

• Dialogue and Idea Exchange• State Bar ADR Section Efforts• Global Pound Conference

Background of Legal Ethics

• Role of the ABA• Then• Now

• Need for Additional Considerations • State Bar of Texas • Other Options, since little real

guidance

Concerns: The Playing Field Changed

• Understanding the Evolution of Law Practice •  Different Approaches, even in Litigation • No Longer, One Size, Color, Shape Fits All

Situations • Need to Examine the Changes in the Lawyer’s

Role in Negotiation, Mediation and Settlement • Understanding that Effectiveness in the

Courtroom Differs Considerably from Effectiveness in Mediation and / or at the Negotiation Table

Issues in Lawyer Representation in Dispute

Resolution Processes• Practice of Law ?

• Rules and Guidelines

• Inconsistency of Process and Rules – Folly• Focus on Mediation and Collaborative

Negotiation

Lawyer Representation: Sample Considerations in Mediation and Negotiation

• Realization / Understanding of Real Paradigm Change

• Overlapping Use of Tactics & Strategies • Inappropriate at Best, perhaps Malpractice

at worst• Real Need for Change in Rules• Knowledge / Understanding of

Negotiation • Role of Mediator – Educator ? Enforcer ?

Other ? • Practical Considerations

The Rules…. • Rule 2.1 Advisor

• Comments

• Rule 3.2 Expediting Litigation

• Rule 4.1 Truthfulness In Statements To Others

• Rule 8.4 Misconduct

Practical Considerations

• Dispute Context• Enforceability of Mediated

Settlements…

• Transactional Negotiations

Legal Representation: Sample Considerations In Arbitration

• Understanding the Process • Importance of Disclosures- ongoing• Real Consequences• Repeat Players• Questionable Authority of Panel / Arbitrator • Roles Distinct – what happens when advocate

a neutral• Problematic Blending of Processes

• Clarity in the DR Clause

Multi-Jurisdictional and International Considerations

• Practice of Law Issues ?• Differing Court Holdings • What Ethical Standards Apply ?

• How Culture Impacts Ethics / Morals • Any Changes Possible / Probable ?

+Going Forward…

Establishing Effective Dispute Resolution Procedures

Contractual Ethics to Govern Procedures

Education and Enforcement Other Considerations…

+Going Forward: Looking at Alternatives…

Role of Courts

Foundation of Best Practices

Role of State Bar AssociationsCurrent Efforts in Texas

Scope of Applicability of Enforcement EntitiesPrivate Justice ?

Contractual Ethics

+Contractual Ethics

OptionsConcerns

Ability to Craft or Design Means to Enforce

Other Considerations

+The Global Pound ConferenceBackground and Overview http://www.globalpoundconference.org/ Importance of equal participation of four

stakeholder groups Providers Advisors Users Miscellaneous

Texas (and central US) Event – first quarter of 2017

+Additional Dialogue / Feedback / Questions & Comments