Settlement Ethics and Lawyering in ADR Proceedings: A Proposal to Revise Rule 4.1
Alfini, James J.
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At the close of the twentieth century, we are witnessing very significant changes in the litigation of civil disputes in our society. Much of the change has to do with a more expansive view by lawyers and judges of the means that may be employed for resolving civil disputes. Cases in litigation are increasingly being sent to mediation, arbitration, summary jury trial, early neutral evaluation, and other alternatives to adjudication. Lawyers are beginning to advise their clients of the availability of these options and are representing their clients in these alternative fora. Much has been said and written about these developments-the alternative dispute resolution (ADR) movement. However, little attention has been given to one manifestation of the increased use of ADR. Specifically, this blossoming of a settlement culture has altered the conduct of lawyers somewhat, or perhaps more accurately stated, has made certain behaviors more salient. This article will argue that we have not created the necessary ethics infrastructure to support this settlement culture. In many respects, this important aspect of our litigation process is in a state of anarchy. There are vague rules to govern our behavior. Although significant changes are needed in both the ABA Model Code of Judicial Conduct and the ABA Model Rules of Professional Conduct, this article will focus on only one aspect of this ethics void - the problem of lawyer gamesmanship and misrepresentations during ADR proceedings. The development of the settlement culture and the increased use of ADR will be traced in Part I. Part II will focus on lawyering in court-sponsored ADR settings, and Part III will analyze the current ethics constraints in these settings. Part IV will argue for revision of Rule 4.1 of the Model Rules of Professional Conduct as a means of addressing this problem.