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Ethical issues in employment negotiations: Not avoiding the unavoidable

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This morning, at the Law Society of Upper Canada, I chaired a panel composed of several “well-seasoned” employment lawyers. The panel discussion was “broadcast” via teleseminar, and the five of us, plus an intimate gathering of 1500 lawyers and paralegals who gathered around their computers, delved into the ethical issues that confront us as employment lawyers conducting negotiations on behalf of our clients.

The conversation was fascinating, and reminded me that each and every day, as we deal with our clients’ interests, we juggle many balls.  It goes without saying that we must know substantive law.  At the same time, we must advocate and protect our clients’ interests.  As lawyers, we must do all of this within an established professional and ethical framework.  As we discussed this morning, sometimes an ethical dilemma dominates the legal one, and it is hard to know what to do.  We all agreed that these dilemmas are ubiquitous in the work we do.

Here are some of the things we talked about:

  • How far can you go in characterizing a portion of a wrongful dismissal settlement as general damages?  Do employees’ indemnities really work in these situations?  Does ensuring that at least the statutory minimums come into the employees’ hands on a taxable basis enough to protect your client?  Should you ask for medical information at a mediation to confirm this type of allocation?  How do you resist the momentum established at a mediation to get the deal done, when what separates you and your client from that deal is a characterization of some of the settlement funds as general damages?
  • What happens when you inadvertently breach confidentiality?  The example we used this morning was based on a real life experience of my own, when I lost my briefcase after a long and exhausting mediation. The briefcase contained confidential information, and until it showed up the next day due to the kindness of a stranger (full story for another blog), I had thought that I had put my client at risk by returning home at the end of the day without it.  As we chatted this morning, we realized that the briefcase could easily be a USB key, or a BlackBerry with sensitive information. Who do you call and when?  What do you do?  How should you respond if you are the one getting the call?
  • How about dealing with a lawyer, paralegal or the ambiguous “advisor” who very obviously doesn’t know what he or she is dealing with, or, approaches negotiations with a level of aggression and hostility that leaves you speechless?  How do you keep your eye on dealing with the clients’ interests, and not get distracted by bad behaviour?
  • Is it appropriate to take instructions from a client who is very upset and weepy in your office and you wonder if he or she is thinking clearly?  How do you protect yourself and the client in these situations?  What about taking instructions to accept a deal that you think is insufficient for the client and doesn’t protect his interests?  What if it is a disability case?  Is having one of your colleagues in your office with you to help you make an assessment sufficient?
  • And how about delays – caused by your own clients?  In our bar, where people frequently deal with each other repeatedly and develop collegial relationships, should you resist the pull to tell opposing counsel that your client is the cause and is being difficult?  Does this compromise your client’s interests?  When does collegial chatting on the phone result in too much being said?

What my colleagues and I all agreed on is that these issues are hard, they are unavoidable, and they are better solved in consultation with someone else.  Most importantly, if you are going to practice ethically, with your reputation intact, you will need to be very thoughtful about solving these issues as they come up.  You cannot avoid the unavoidable.

Janice Rubin