법률가의 협상업무를 위한 법조윤리- 미국 변호사 직무행위표준규칙을 중심으로 -
Legal Ethics for Legal Negotiation
0
조회
0
다운로드
2
인용
0
참고문헌
키워드
초록
It is often debated whether the same ethical standards should be applied to lawyers negotiating on behalf of clients. Some might argue that there is no reason for leniency towards negotiating lawyers; others might argue that negotiation process inherently involves lying, misrepresentation and other unethical tactics. As the importance of legal negotiation by lawyers is only recently acknowledged in Korea, there is not enough discussions on negotiation ethics. This article introduces the rules under ABA Model Rules of Professional Conduct relevant to lawyer’s negotiation, and related debates and discussions. There is a conflict between a lawyer’s duty of zealous representation towards her client and a lawyer’s duty of honest and fair dealing. There is a conflict between a lawyer’s duty to disclose certain material facts to the non-client across the negotiation table and her duty of confidentiality towards her client. Discussions in this article would help in establishing Korea’s own rules for lawyer’s negotiation process.
Abstract
It is often debated whether the same ethical standards should be applied to lawyers negotiating on behalf of clients. Some might argue that there is no reason for leniency towards negotiating lawyers; others might argue that negotiation process inherently involves lying, misrepresentation and other unethical tactics. As the importance of legal negotiation by lawyers is only recently acknowledged in Korea, there is not enough discussions on negotiation ethics. This article introduces the rules under ABA Model Rules of Professional Conduct relevant to lawyer’s negotiation, and related debates and discussions. There is a conflict between a lawyer’s duty of zealous representation towards her client and a lawyer’s duty of honest and fair dealing. There is a conflict between a lawyer’s duty to disclose certain material facts to the non-client across the negotiation table and her duty of confidentiality towards her client. Discussions in this article would help in establishing Korea’s own rules for lawyer’s negotiation process.
참고문헌 (17)
- 고학수, "협상을 통한 분쟁해결경제학의 관점", 법과사회, (31), pp.187~209 (2006), 법과사회이론학회
- 박헌준, "협상 연구의 이론적 과제와 전망", 연세경영연구, 44(2), pp.181~211 (2007), 경영연구소
- Charles B. Craver, "The Impact of Student GPAs and a Pass", Fail Option on Clinical Negotiation Course Performance, pp.15, 373~
- 김재원, "韓國 로스쿨에서의 敎育方法", 성균관법학, 18(2), pp.137~154 (2006), 법학연구소
- 함영주, , 법률가를 위한 협상론 강의 (2011), 법학전문대학원협의회
- James J. White, "Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation", American Bar Foundation Research Journal (1980)
- Donald G. Gifford, "Legal Negotiation – Theory and Applications", pp.202~ (1989), West Group
- Douglas R. Richmond, "Lawyers' Professional Responsibilities and Liabilities in Negotiations", Georgetown Journal of Legal Ethics, 22(winter), pp.249~ (2009)
- Gerald B. Wetlaufer, "The Ethics of Lying in Negotiations", Iowa Law Review, 75, pp.1219~ (1989)
- Eleanor Holmes Norton, "Bargaining and the Ethic of Process", New York University Law Review, 64, pp.493~496 (1989)
- "ABA Ethical Guidelines for Settlement Negotiation" (2002)[URL]
- Stuart K. Fleischmann, "Contract Negotiating: How Much Truthfulness is Required", 1999 The Professional Lawyer, Symposium Issues, pp.123~ (1999)
- 김재원, "법조윤리의 교육과 시험 - 한국과 미국의 비교법적 고찰 -", 성균관법학, 22(3), pp.1123~1146 (2010), 법학연구소
- Charles B. Craver, "Negotiation Ethics for Real World Interactions", Ohio State Journal on Dispute Resolution, 25, pp.299~310
- David Geronemus, "Lies, Damn Lies and Unethical Lies", Business Law Today, 6, pp.11~ (1996)
- Charles B. Craver, "Negotiation Ethics: How to be Deceptive without being dishonest", How to be assertive without being offensive, pp.38, 713~731
- 한인섭, "법조윤리", pp.174~ (2011), 博英社