November 12, 2014

Labour and employment practitioners face an ethical minefield in negotiations and litigation. When is it permissible to bluff in mediation? Is posturing the same as lying? What are the obligations of the employer, union and counsel where two union members come into conflict? In this session, a panel of Lancaster’s experts will provide practical tips to guide you through these and other ethical dilemmas. Issues to be addressed include:

  • Civility and fearless advocacy: Should the conduct of practitioners vary depending on whether they are negotiating at the bargaining table or litigating in a public forum? If so, how? Is there any conduct that would be permissible during negotiations but not litigation, or vice versa? When, if ever, is it defensible to contest facts not seriously in dispute? Is it ethical to refuse entering into an agreed statement of facts because the additional expense of hearing days may incline the other side to settlement? Is it appropriate to subtly inform an arbitrator that an unwelcome decision could result in his or her “never arbitrating in this town again”? Is there an ethical obligation to advise adjudicators of arguably binding authority?
  • Negotiations: Must an employee’s lawyer disclose a client’s new employment in settlement negotiations? Is it ethical to bluff the value of a case to a mediator, in the hopes of achieving a favourable settlement? What about misstating the limit of settlement authority at mediation? Is it ever ethical to “low ball” your own client? Is posturing the same as lying? If not, how are they different? Is it acceptable to raise the prospect of a strike or lockout, or a breakdown in negotiations if that prospect is very unlikely? When, if ever, is it ethical to threaten or institute proceedings in order to gain leverage?
  • Conflicts of interest regarding representation: How can conflicts of interest be avoided where a lawyer moves from a management-side firm to a union-side firm or vice versa? Will the lawyer be disqualified from acting where his or her previous firm represented the opposing party? What if the case is unrelated? How should conflicts of interest be raised in adjudication? What kind of evidence is necessary to prove a conflict of interest justifying removal of counsel?
  • Conflicts of interest between union members: What are the obligations of the employer, union and counsel where two union members come into conflict? Does it matter if the conflict involves alleged criminal behaviour, such as sexual assault? Should outside counsel be appointed where a conflict arises between members? Should independent legal advice be provided to members? Should a collective agreement set out an alternative complaint process to the filing of a grievance where one union member alleges discrimination or harassment by a fellow member? If so, what are some model processes?
  • Conflicts of interest between union and union members: What obligations, if any, does union counsel owe to an individual grievor? If an individual grievor complains to union counsel about the union’s carriage of his or her grievance, how should counsel respond? If a lawyer has carriage of an individual grievance, in what circumstances, if any, will the lawyer be disqualified from acting for the union against the grievor? What types of representation by unions can lead to the finding of a solicitor-client relationship between the union lawyer and the member? How can such a finding be avoided? Can a union lawyer accept instructions not to be candid with an individual grievor? What guidance do the Rules of Professional Conduct provide regarding a union lawyer’s duties to an individual member? How should a lawyer respond to a Law Society complaint filed by a grievor?

Note: This program is approved for 1.5 Ethics Hours by the Law Society of Saskatchewan.

Note: This program is approved for 1.5 Professional Responsibility and Ethics Hours by the Law Society of British Columbia.

Note: This program is approved for 1.5 Professionalism Hours by the Law Society of Upper Canada.