Vol. 73, No. 4, April 2000

President's Perspective

The Art of Negotiation

by Leonard L. Loeb

As lawyers, we are negotiators. Negotiation is one of our premier tools of the trade. Negotiations should be entered into in a "win-win" mode. Since most cases are settled by negotiation rather than by litigation, one of my goals of office is to create a set of guidelines that will assist practitioners with negotiations. Last summer, I appointed a forum of knowledgeable, experienced practitioners to discuss and draft guidelines under the able chair of Robert Elliott. Ultimately, I hope that the guidelines will be approved by the State Bar Board of Governors and will be disseminated statewide for the membership's benefit.

The forum is charged with formulating guidelines, which express for both novice and seasoned lawyers, what the bar expects from attorneys engaged in negotiations. In addition, it is hoped that all parties who are engaged in negotiations will agree to comply with the guidelines.

The Wisconsin Guidelines of Negotiation Forum includes chair Robert Elliott, Michael Bamberger, Andrew Barnes, Thomas Brown, Steven Kravit, Patrick Matthews, Kathleen Miller, Howard Meyers, Kathy Nusslock, Prof. Andrea Schneider, and Joseph Tierney III. These are experienced lawyers who use the tool of negotiation regularly in their practices. Their practices range from labor law to family law, from financial and business transactions to civil and criminal litigation.

The forum met regularly for six months and drew initially upon the wealth of published materials that exists on this subject, including publications from the American Bar Association, the Delaware State Bar Association, Chapter 20 of the Wisconsin Supreme Court Guidelines (preamble to 20:1.7 and 20:2.1 to end), a December 1998 State Bar CLE Seminar entitled "Ethics of Negotiation," and numerous law review articles.

Forum members found that they share a number of similar personal negotiation guidelines. They also discovered that concepts that appeared on their face to not be disputed were, in fact, vigorously debated. For example, the forum debated whether an attorney has an obligation to correct an opponent's misapprehension of a law or fact if it operates to that attorney's client's advantage and whether an attorney has an obligation to not take advantage of an unrepresented party to a negotiation. Answers to such questions differ according to the interpretation of attorneys' obligation to the public in relation to their obligation to the client.

The Wisconsin Guidelines of Negotiation are, as their preface states, intended to be read and applied in conjunction with the Rules of Professional Conduct, adopted by the Wisconsin Supreme Court as SCR 20 (preamble to 20:1.7 and 20:2.1 to end). Essentially, they are an articulation of what each attorney would determine to be fair and honest under the circumstances, either as to that attorney's client, opposing attorney, or opposing unrepresented party.

The guidelines will be presented to the Board at its April meeting. I invite your comments and annotations. The guidelines can be found online. Please fax your comments to either Robert Elliot at (414) 225-9063 or me at (414) 272-7918.

As always, you can reach me by email.