1. Ethical Considerations in Dispute Resolution Practice Thursday, October 29, 2015 Kimberlee Kovach Kovach Dispute Resolution www.kimkovach.com kim@kimkovach.com k2kovach@yahoo.com

2. Overview & Agenda Focus on the Lawyer Representative rather than the Neutral Numerous different Codes or Standards for Neutrals, though issues regarding enforcement Examination of potential Ethical Issues of the Lawyer (and the Client) in Mediation / Negotiation Concerns and Issues in Arbitration Practice Process Understanding Disclosure Matters Partiality and Appearance of Bias

3. Overview & Agenda, cont’d. Standards in Transactional Negotiation Negotiating a Dispute Resolution Clause Contracting for Ethics / Standards of Conduct Potential of Issues Arising in Multi- Jurisdictional Practice Mediation Arbitration Dialogue and Idea Exchange State Bar ADR Section Efforts Global Pound Conference

4. Background of Legal Ethics Role of the ABA Then Now Need for Additional Considerations State Bar of Texas Other Options, since little real guidance

5. Concerns: The Playing Field Changed Understanding the Evolution of Law Practice Different Approaches, even in Litigation No Longer, One Size, Color, Shape Fits All Situations Need to Examine the Changes in the Lawyer’s Role in Negotiation, Mediation and Settlement Understanding that Effectiveness in the Courtroom Differs Considerably from Effectiveness in Mediation and / or at the Negotiation Table

6. Issues in Lawyer Representation in Dispute Resolution Processes Practice of Law ? Rules and Guidelines Inconsistency of Process and Rules – Folly Focus on Mediation and Collaborative Negotiation

7. Lawyer Representation: Sample Considerations in Mediation and Negotiation Realization / Understanding of Real Paradigm Change Overlapping Use of Tactics & Strategies Inappropriate at Best, perhaps Malpractice at worst Real Need for Change in Rules Knowledge / Understanding of Negotiation Role of Mediator – Educator ? Enforcer ? Other ? Practical Considerations

8. The Rules…. Rule 2.1 Advisor Comments Rule 3.2 Expediting Litigation Rule 4.1 Truthfulness In Statements To Others Rule 8.4 Misconduct

9. Practical Considerations Dispute Context Enforceability of Mediated Settlements… Transactional Negotiations

10. Legal Representation: Sample Considerations In Arbitration Understanding the Process Importance of Disclosures- ongoing Real Consequences Repeat Players Questionable Authority of Panel / Arbitrator Roles Distinct – what happens when advocate a neutral Problematic Blending of Processes Clarity in the DR Clause

11. Multi-Jurisdictional and International Considerations Practice of Law Issues ? Differing Court Holdings What Ethical Standards Apply ? How Culture Impacts Ethics / Morals Any Changes Possible / Probable ?

12. + Going Forward… Establishing Effective Dispute Resolution Procedures Contractual Ethics to Govern Procedures Education and Enforcement Other Considerations…

13. + Going Forward: Looking at Alternatives… Role of Courts Foundation of Best Practices Role of State Bar Associations Current Efforts in Texas Scope of Applicability of Enforcement Entities Private Justice ? Contractual Ethics

14. +  Options  Concerns  Ability to Craft or Design  Means to Enforce  Other Considerations

15. + The Global Pound Conference Background and Overview http://www.globalpoundconference.org/ Importance of equal participation of four stakeholder groups Providers Advisors Users Miscellaneous Texas (and central US) Event – first quarter of 2017

16. + Additional Dialogue / Feedback / Questions & Comments