•  
  •  
 

Abstract

Creating a comprehensive code of negotiation ethics for lawyers is a contentious issue. The Law Society of Upper Canada’s Rules of Professional Conduct currently offers little guidance regarding appropriate behaviour of lawyers during negotiations. Detractors argue that the negotiation process is too complex and fluid to be codified. This criticism is not fatal to the case for a code of negotiation ethics. Lawyers have moral and ethical standards within the profession and responsibilities to the public as conduits to legal remedies. This paper argues a code of legal ethics is necessary to uphold these standards. Such a framework should be based on the concept of good faith negotiation with a view to honest disclosure and expeditious settlement of disputes. Developing a negotiation ethic is integral to addressing the access to justice and the concomitant rule of law problem identified by the Supreme Court of Canada in Hryniak v Mauldin. This article draws on national and international codes of conduct that have implemented guidelines for negotiations. It concludes with potential reforms to remedy the problems of expensive court procedures, affordability of legal representation, and maintaining public respect for the judicial system.

This article is helpful for readers seeking to learn more about:

  • Law Society of Upper Canada, Rules of Professional Conduct, legal professionals, legal practice, negotiations, alternative dispute resolution, duty of good faith

Topics in this article include:

  • private mediations, ethics, professionalism, civil law, civil justice, social reform, national codes of legal conduct, international codes of legal conduct, personal injury law, the adversarial justice system, American Bar Association

Authorities cited in this article include:

  • Ontario, Law Society of Upper Canada, Rules of Professional Conduct

  • Hryniak v Mauldin, 2010 SCC 35

  • Martel Building Ltd v Canada, 2000 SCC 60

  • 978011 Ontario Ltd v Cornell Engineering Co, (2001), 53 OR (3d) 783 (CA)

  • Mellco Developments Ltd v Portgage la Prairie (City), 2002 MBCA 125

  • Walford v Miles, [1992] 1 All ER 453 at 460 (HL)