#10319 - Professional Ethics - BPC Alternative Dispute Resolution

PROFESSIONAL ETHICS IN ADR

Duties

• primary duty to lay client (not professional client)

• act in best interests of lay client don't let solicitor limit discretion as to how best served

• if conflict of interest between lay and professional client, advise lay client to instruct another solicitor

• act with absolute independence, impartiality, freedom from external pressures

• act within client's instructions

• remember decision to make offer to settle is ultimately client's (though can advise)

• act with integrity - don't engage in:

  • dishonest / discreditable conduct

  • conduct prejudicial to admin of justice

  • conduct likely to diminish public confidence

  • bring legal profession into disrepute

• don't discriminate

• only take tasks competent to undertake

• when drafting, don’t draft document containing:

  • facts / contentions not supported by instructions

  • unarguable contentions

  • allegations of fraud without clear instructions + reasonably credible material establishing a prima facie case of fraud

Authority to settle in non-adjudicative processes

• ensure you

  • understand any limitations on authority

  • don't exceed authority (agreement still binding prof neg action)

  • don't mislead other parties to ADR as to authority given

  • understand bottom line

  • make and keep accurate note of offers, concessions etc. and get client to initial offer before made or rejected

Confidentiality

• duty of confidentiality

  • written into code of conduct

• legal professional privilege

• applies to :

  • lawyer-client communications for the purpose of giving or receiving legal advice, including ADR options

  • client-3rd party / solicitor-3rd party communication where sole / dominant purpose is to help in conduct of litigation (ongoing or reasonably prospective)

• does NOT apply to meeting between lawyers on opposing sides

• can be:

  • waived by client

  • waived by court

  • lost by inadvertent disclosure

• without prejudice (WP) privilege

  • effect: WP communications inadmissible in connected present and subsequent proceedings between same parties and between party and 3rd party

  • applies

    • to party-party communications made in an attempt to settle a dispute, regardless of whether settlement reached

    • after issue of proceedings

    • before issue of proceedings, provided both parties might reasonably have contemplated litigation if can't settle

    • only to parties themselves

  • waiver by consent

    • both parties must agree

      • burden on party wishing to waive rule to alert other party and establish objectively that the other party aware

      • disclosing party should seek views of other side and notify court before disclosure

      • no adverse inferences can be drawn from refusal to disclose

  • does NOT apply to 3rd parties (mediator, expert etc.), so if parties waive, 3rd party CAN'T rely on WP N.B. 3rd parties CAN rely on confidentiality

  • rationale: public policy in encouraging settlement; allow parties to 'put cards on the table' without fear will be used against them in litigation

  • words "without prejudice"

    • need NOT be used

    • if they are, NOT conclusive that the rule applies

  • if judge sees privileged / inadmissible material:

    • bias issue NOT raised automatically

    • BUT if recusation (plea by D for judge to withdraw) sought judge should consider subjectively whether biased + objectively whether real danger of unfair trial

  • court will not dissect negotiations to determine what is / is not WP

  • rule protected by statute / rules of court:

    • employment cases - party-conciliation officer communications

    • private family law children cases - judge-led in-court conciliation in collaboration w/ Cafcass officer + mediator = protected from disclosure in subsequent hearings

    • financial remedies cases - settlement discussions explored with a judge

  • definitely applies to mediation; likely to apply to attempts to reach negotiated settlement during adjudicative processes

  • if WP rule conflicts w/ duty to make full and frank disclosure court consider if public policy in favour of confidence overridden by possibility of court being misled

  • exceptions

    • categories not closed, provided new exceptions don’t discourage settlement

    • communications can be disclosed in interests of justice:

      1. if both parties agree (see above)

      2. to determine if settlement reached (court can examine communications)

      3. to prove terms of settlement

      4. to help interpretation / construction of terms resulting from the negotiations and to ascertain the parties' objective intentions

      5. if...