Ethics

Question 1

What is the overriding objective?

Answer 1

To ensure the case is dealt with expeditiously and fairly and in a way that is proportionate to the issues, the importance of the case, and the financial position of each party

Question 2

How must the advocate advise the client in keeping with the OO?

Answer 2

• Encourage the parties to cooperate with each other
• Consider ADR with the client at all stages
• Must act in the best interests of the lay client without regard to your own interests
• Extent of the lawyer’s involvement should be clearly agreed
• Costs advice

Question 3

What does a lawyer risk if he does not advise the client properly?

Answer 3

• If a lawyer fails to give appropriate advice, he exposes his client to costs sanctions, and could be personally liable for wasted costs
• Risks a professional negligence action

Question 4

HOW SHOULD LAWYERS PROVIDING AN ADR SERVICE BEHAVE?

Answer 4

Neutral

Avoid the appearance of bias

Independence and impartiality

Personally responsible for their conduct and professional work

Should be able to justify decisions

Question 5

Core obligations for lawyers are as follows:

Answer 5

• Act within the client’s instructions
• Act at all times in the client’s best interests
• Advising on settlement
• Independence
• Integrity
• Fairness
• Competence

Question 6

What are the advocate’s duties when dealing with a case and drafting documents?

Answer 6

• Must not mislead/attempt to mislead
• Must not draft anything unsupported by the lay client
• Must not draft anything he doesn’t consider properly arguable

Question 7

WHAT IS THE RELATIONSHIP BETWEEN BARRISTERS AND THEIR PROFESSIONAL CLIENTS IN ADR?

If the barrister sees a conflict of interest between the client and solicitor, he must inform the solicitor and make sure the client is aware

Answer 7

• Inform the instructing solicitors of important events that occurred
• Be clear on the division of roles
• Professional duty is to the lay client, not the professional client
• Do not permit the solicitor to limit the barrister’s discretion

Question 8

What should the lawyer check, in practical terms?

Answer 8

Information the client wishes to withhold from the other side

What can be disclosed to the mediator on a confidential basis

Open offers the client wishes to make

Admissions the client is willing to make

Question 9

What are a lawyer’s specific duties in mediation?

Answer 9

• Ensure all allegations are properly arguable
• Must not mislead
• Cannot withhold information which may be detrimental to the client’s case if failure to disclose renders false/misleading information on which the other side relies
• Ensure lay client is not engaging in ADR with an improper motive

Question 10

What are the mediator’s duties?

Answer 10

If the mediator has grounds to suspect misrepresentation, he must inform the party

The mediator must also warn the parties and lawyers of the dangers of misrepresentation

Question 11

What are a lawyer’s specific duties in negotiation?

Answer 11

Must not mislead

Must not engage in conduct that is discreditable or would diminish public confidence in the profession

Ensure all allegations are properly arguable

Question 12

When negotiating, what specifically should a lawyer never do?

Answer 12

• Pretend to have evidence/misrepresent the evidence
• Lie about a final offer
• Lie about his instructions
• Conceal information that should be disclosed
• Provide information he knows is false or misleading
• Threaten with unrelated adverse consequences

Question 13

Confidentiality is maintained by which principles?

Answer 13

• Professional duties of confidentiality
• Contractual agreement between the parties
• Legal professional privilege
• Without prejudice

Question 14

When may problems may arise with confidentiality?

Answer 14

• ADR breaks down and there is an attempt to use something revealed in later litigation
• Dispute about the terms agreed in settlement
• Attempt to call anyone involved in the ADR as a witness in later proceedings

Question 15

What is a barrister’s duty with regards to confidentiality?

Answer 15

To keep the affairs of each client confidential, except where disclosure is required by law

Question 16

What are the confidentiality things in mediation?

Answer 16

• Contractual agreement and without prejudice
• Communications between a mediator and one party

Question 17

When can mediation communications can be disclosed?

Answer 17

The court orders disclosure

• Where one party wants to set aside the settlement on the grounds of economic duress
• Where a claim is brought against a mediator for negligence/misconduct
• Where there is a risk of harm to anyone
• To prevent a criminal act
• Where there is a statutory duty of disclosure

In cross-border mediations

Question 18

How can an express confidentiality clause in the mediation agreement be waived, and by who?

Answer 18

The mediator is a party to the agreement, so all parties AND the mediator can waive, when:

• The parties agree it is important that a public rather than private meeting take place
• The parties want a provision of the settlement agreement to be made public
• The parties agree that confidential info can be revealed to the other party

Question 19

Confidentiality in ENE and ED

Answer 19

Confidential information can be provided to the determiner/evaluator unless the parties agree otherwise

• It is generally unwise for one party not to provide this, especially where reasons will be given
• The evaluator/determiner should summarise the info in private so the parties know what information has been relied upon
• Private communications between one party and the eval/deter may give rise to the appearance of lack of neutrality

Question 20

Confidentiality in adjudicative processes

Answer 20

Confidentiality often reinforced in an express clause

Confidentiality is likely to extend to all documents produced in/prepared for the arbitration

However, confidentiality is not absolute, and these exceptions permit disclosure where:

• Parties consent
• Court orders it
• Required in the public interest
• Necessary to protect the legitimate interests of a party/party’s legal rights
• Statutory duty to disclose
• Parties expressly or impliedly waived confidentiality

Question 21

WHERE DOES LEGAL PROFESSIONAL PRIVILEGE APPLY?

Answer 21

• Applies to communication between a lawyer and the client for the purposes of giving legal advice
• It applies to advice on what should be done, including ADR (so long as obtaining legal advice is the dominant purposes of the communication)
• Only applies to lawyers and clients, not other professionals
• Where a mass of communications have partly management functions, it may be difficult to show the reports are privileged
• Can be waived by the parties
• Can be lost by inadvertent disclosure

Question 22

What does ‘without prejudice’ mean?

Answer 22

• All communications
• passing between the parties to a dispute
• whether made orally or in writing
• made in an attempt to settle the dispute
• are protected from disclosure to the court or any third party (including other parties in the litigation) in existing or future litigation between the same parties which is connected with the same subject matter
• Whether or not the words ‘without prejudice’ have been used

Question 23

Who is protected by WP?

Answer 23

Privilege belongs to the parties only (although third parties may be able to rely on the separate concept of confidentiality)

Question 24

What are the exceptions to the without prejudice rule?

Answer 24

• Determining whether a settlement was reached, or to prove its terms
• Assisting in the proper interpretation or construction of the agreement terms
• Rectifying the agreement
• Determining whether any settlement agreement apparently reached should be set aside on the grounds of misrep, fraud or undue influence
• Where there was no settlement, communications to show that a statement was made by one party with the intention that the other side should rely on it = estoppel
• Where the rule is being abused
• Where the rule is being used as a cloak for perjury, blackmail, or other unambiguous impropriety
• Where there is a risk of serious harm to a child
• In some interim applications to explain delay in litigation, or to obtain relief from sanctions
• Both parties consent to the privilege being waved (though no inferences should be drawn from a refusal to waive)
• If the parties have made it clear that the communication can be looked at on the question of costs (e.g. by marking it ‘WP save as to costs’), the court can look at it after judgement on liability, before costs
  
  • However, the court has no power to do this unless the parties have negotiated on the basis that they reserve the right to bring communications to the court on the question of costs, or all parties agree to waive privilege
• The court will not dissect negotiations in order to isolate statements that will be admissible

Question 25

What is the overall consideration of the WP rule?

Answer 25

That the parties should not be discouraged from settling their disputes.

Question 26

DISCLOSURE OF INFORMATION TO THE CONTROLLER IN ADR PROCESSES

Answer 26

**Non-adjudicative ADR and ED** * Parties retain control * Information doesn’t usually have to be disclosed * Adverse information may need to be disclosed if failure to do so renders false or misleading info that has already been disclosed * Adjudication and arbitration **Parties usually agree to the ambit of disclosure** * Absent any agreement, the court will determine the scope of disclosure * Disclosure tends to be like in litigation

Question 27

AUTHORITY TO SETTLE - what must lawyers ensure?

Answer 27

* Lawyers acting in a non-adjudicative ADR must ensure that they: * Have clarified any limitations on their authority to settle * Do not exceed this authority * Do not mislead the opposing party as to authority given * Understand the client’s bottom line * Make and keep accurate notes of offers, counter-offers and concessions