LAWYERS’ ETHICAL OBLIGATIONS, INNOVATIVE MODELS OF LEGAL SERVICE, AND A TIME OF REGULATORY UPHEAVAL:
SETTLEMENT COUNSEL AS AN INSTRUCTIVE MODEL
Keywords:legal ethics, settlement counsel, negotiation, code of conduct, loyalty, competence, confidentiality, candour, compliance regulation, unbundling, limited scope retainer, bifurcated roles
Current models of professional regulation still embody traditional norms around the lawyer’s role. This article explores the constraints of reactive, rule-based ethical frameworks, using the example of Settlement Counsel, an innovative negotiation structure to advance settlement in commercial litigation. Settlement counsel work alongside litigation counsel, on the same side of the litigation file, but with carefully bifurcated roles. Drawing on interview data, the authors discuss the tensions encountered by settlement counsel as they fit their work into traditional obligations around competence, loyalty, confidentiality, candour, and lawyer-client cross-communication. The authors present pathways chosen by settlement counsel to ensure compliance. In today’s environment, however—with its emphasis on “accessible” outcomes and innovation—regulatory frameworks need to be more flexible and responsive. The emerging model of compliance regulation is explored, and is offered as a framework with capacity to evolve alongside innovations in the delivery of legal services.