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These two rules do not appear to be reproduced in the new Law Society's Code of Conduct [2004]. This document is out for consultation (January 2005). In its current form it states among the core duties of a solicitor:

"Core Duties
1.07 In your professional dealings you must treat others fairly, reasonably and without unlawful discrimination.
1.10 You must not behave in a way which damages or is likely to damage the reputation or integrity of the profession."

And at Rule 10:

"Relations with third parties 10.01 Not taking unfair advantage
You must not use your position to take unfair advantage of anyone either for your own benefit or for another person's benefit."

It is to be presumed that this re-writing of the code of conduct is not intended to reduce the ethical obligations of the solicitor negotiator.

As a matter of ethical practice

The question for the ethical negotiator is, whether it is possible to negotiate effectively while demonstrating frankness and good faith about:

The fastidious negotiator can avoid most of the difficulties on the basis that much of what is said in negotiation is not statement of fact but matters of opinion and transient state of mind. To say that one's client's case is strong or that his business is worth at least 1,000,000 are statements of opinion not fact. To say that one's client will go to court if the current offer is not accepted is a statement of the state of the client's mind that may be subject to change. It seems to be understood and accepted that some degree of dissimulation3 is expected in negotiation.

3The New Oxford Thesaurus of English offers: pretence, dissembling, misrepresentation, deceit, dishonesty, duplicity, lying, guile, subterfuge, feigning, falsification, shamming, faking, bluff, bluffing, counterfeiting, posturing, hypocrisy, double-dealing; concealment, concealing, masking, disguising, hiding, veiling, shrouding. The negotiator can select which words describe acceptable and unacceptable actions.

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April 2005