With the emergence of settlement counsel, must we update our code of conduct rules?
Splitting roles between litigation counsel and settlement counsel presents some challenges.
In a recent Canadian Bar Review article co-authored with Brent Cotter, Michaela Keet returns to her interest in the emerging trend of splitting roles between litigation counsel and settlement counsel, which on negotiation to reach early settlement of disputes. The authors note some challenges, in dividing litigation and settlement tasks, particularly as practitioners in this model try to square their roles with existing professional rules:
SC is an example of commercial adaptation to the challenges of modern practice. Such innovations, however, are hampered by older normative frameworks around “the lawyer’s role”, located inside existing models of professional regulation.
Driving the SC model is a concern for client-centered outcomes, and for potential internal limitations in a traditional litigation service. The task of advancing a claim or defense in litigation can be all consuming, whether assigned to a corporate litigation lawyer or outside counsel. The litigation mission can compromise one’s capacity to step back, consider possible creative outcomes, and pursue settlement. In some circumstances—perhaps situational—the litigation lawyer is not the one best placed to advance negotiation with the client’s best interests at the fore. Even without the internal conflict between litigation and settlement roles, she may not have an intimate understanding of the corporate client’s goals and priorities, with little opportunity to explore those in the normal process of preparing for stages in civil litigation.
The appointment of SC means adding a specialized negotiator to the client’s legal team. It allows for the advancement of litigation and settlement as divided tasks, which can proceed simultaneously on parallel tracks. In that they are “[r]etained and paid separately from litigators—and often [work] closely with clients—SC negotiate directly with the other side to resolve the file, while litigation counsel navigate a separate litigation process.”
The authors consider how regulatory reform might accommodate this kind of innovation in legal practice:
Read together with the commentaries, the above rules still encrypt a traditional conception of litigation services, which legitimately creates discomfort for lawyers exploring innovative roles and models. With transparent contracting, the SC lawyer can meet code rules—but a policy driven response is warranted. Law societies could continue expanding commentary language to settle questions around such creative and unconventional approaches. However, the evolution of legal regulation toward compliance-based regulation offers unique opportunities for a wide ranging policy response that could address ethical requirements in many unique or evolving practice settings, including that of SC. Provided that such a response is grounded in principle and attentive to law societies’ foundational duty to protect the public interest, it offers liberating opportunities for legal professionals—SC and others—looking for innovative ways to deliver legal services that better respond to client needs and the needs of the administration of justice
Read the whole thing.