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Copyright © 2015 John DeGroote Services, LLC
Ethics in Negotiation:Perspectives from Every Seat at the Table
Mar 31, 2015
Cocktails and Conversations CLE • Plano, Texas
Susan Hartman • John DeGroote
Copyright © 2015 John DeGroote Services, LLC 2
Step One: Negotiation Ethics?
Oxymorons
• Unbiased
Opinion
• Original
Copies
• Only Choice
…Negotiation
Ethics?
Copyright © 2015 John DeGroote Services, LLC
The Definitions
3
Moral principles
that define a person’s
or group’s behavior.
- Oxford Dictionary“
“Ethics”
in negotiation
Ethics
“
Negotiation
Ethics
Copyright © 2015 John DeGroote Services, LLC 4
Today’s Path
• One Area Formal
Rules Don't
Address
• Formal
Boundaries
• Two Hypotheticals
in Perspective
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One Area Formal Rules Don’t Address
Lawful, But Awful?
• “No [my dog
does not bite].”
• "4 Out of 5 Dentists
...."
• “The Boulder
grand jury has
completed its
work... No
charges have
been filed."
Copyright © 2015 John DeGroote Services, LLC
One Area Formal Rules Don’t Address
6
- Warren Buffet
Your Choices Have Consequences
“ “It takes 20 years to build a reputation
and five minutes to ruin it. If you think
about that, you'll do things differently.
Copyright © 2015 John DeGroote Services, LLC
When trust is low, in a company or in a
relationship, it places a hidden 'tax' on
every transaction: every communication,
every interaction, every strategy, every
decision is taxed, bringing speed
down and sending costs up.
““
One Area Formal Rules Don’t Address
…and Those Consequences Impact Others
- Stephen M. R. Covey
The Speed of Trust
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4.01(a): False Statements of Facts or Law
4.01(b): Failure to Disclose
1.02(d): Efforts to Dissuade from Crime or Fraud
1.12(b): Remedial Actions if Anticipated Violations
Formal Boundaries
Texas Disciplinary Rules
of Professional Conduct
Four Rules for Today
Copyright © 2015 John DeGroote Services, LLC
Formal Boundaries
9
Puffery
• What is a
“material
fact”?
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Formal Boundaries
10
Commission
vs. Omission
Copyright © 2015 John DeGroote Services, LLC
5 Quotes that Will Confirm You’re Lost
11
1. "Everybody
Does It"
2. "It’s For a
Good Cause"
3. "Just this
One Time"
4. "If I Don’t Do It,
Somebody
Else Will"
5. "If It Isn’t Illegal,
It’s Ethical"
Copyright © 2015 John DeGroote Services, LLC
Copyright © 2015 John DeGroote Services, LLC
In-House Counsel
ClientLaw Firm Partner
Around The Table
13
Mediator
General Counsel
Law Firm Associate
CFO/Financial Advisor
Copyright © 2015 John DeGroote Services, LLC
BACK TO “AROUND THE TABLE”
The Partner
14
• The Approach:
Ethics in Context
• Audience
Adaptation
• “The Client”:
Duties and More
• Client
Expectations
• Trust
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The Client Representative
15
• Perception
vs. Reality
• Stated Goals
and Obstacles
• Hidden
Incentives
• Hidden
Obstacles
• The Long Term
BACK TO “AROUND THE TABLE”
Copyright © 2015 John DeGroote Services, LLC
The In-House Counsel
16
• Litigation
Avoidance
• Budget
• This Matter
• Other Matters
• Outside Counsel
Relationship
BACK TO “AROUND THE TABLE”
Copyright © 2015 John DeGroote Services, LLC
The General Counsel
17
• The Goal
• Constraints
• Compliance
& Reporting
• Talent
Development
• The Executive
Committee
BACK TO “AROUND THE TABLE”
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The CFO/Financial Advisor
18
• Expertise and
Perspective
• Compensation
and Incentives
• New Information
• Obligations and
Constraints
• The Executive
Committee
BACK TO “AROUND THE TABLE”
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The Law Firm Associate
19
• The Client’s
Goal
• Zealous
Advocacy
• Preparation
• Information
Flow
• The Firm
BACK TO “AROUND THE TABLE”
Copyright © 2015 John DeGroote Services, LLC
The Mediator
20
• Preparation
• The Other Side’s
Perspective
• Process Design
• The 3:30 Call
• Tonight’s Dinner
BACK TO “AROUND THE TABLE”
Copyright © 2015 John DeGroote Services, LLC
Susan HartmanFounder, Park Hartman, LLC
Susan Hartman specializes in those critical and high-impact situations where a deeper dive into a company’s or individual’s financials is needed. Susan is a Certified Public Accountant and Certified Fraud Examiner. Prior to founding Park Hartman, she worked in the Financial Advisory Services practice of AlixPartners. Susan has also led M&A for two public companies, served as a CFO and Controller, and been an investment banker at Lehman.
Served as accounting expert of the Independent Examiner under the terms of a Deferred
Prosecution Agreement. Reported to DOJ on revenue recognition and internal controls issues.
Appointed by probate judge to be the Independent Auditor in a dispute over joint venture
assets. Recreated 35 years of financial operating history of the JV.
Investigated $400 million alleged oil and gas Ponzi scheme. Advised on related DOJ
and FINRA cases and follow-on litigation.
Prepared expert witness report on valuation and economic structure of a $10 billion hedge
fund as support for damages in partner litigation.
Advised defense attorneys on accounting treatment and GAAP application in conjunction
with white collar criminal case related to public company revenue recognition.
Assisted Liquidating Trustee of the BearingPoint Trust in financial wind-down of entity.
• BSM, Tulane University, 1990
21
• MBA, The Wharton School, 1996
Copyright © 2015 John DeGroote Services, LLC
John DeGrootePresident, John DeGroote Services, LLC
John DeGroote is a former global company general counsel now serving as a mediator, arbitrator and court-appointed trustee in significant disputes. He believes that hands-on leadership, early matter assessment, and aggressive project management drive results.
Serves as the Liquidating Trustee to the BearingPoint, Inc. Liquidating Trust through
John DeGroote Services, LLC.
Served from 2000 through 2008 as the Chief Litigation Counsel to KPMG
Consulting/BearingPoint; eventually led a team of over 40 in-house lawyers around the globe
as
the Company's Chief Legal Officer from 2008 through late 2009, when he became
the Company's President.
Previously practiced with the law firms of McKool Smith, P.C. and Jackson Walker, L.L.P.,
with a focus on complex technology, commercial, and intellectual property litigation matters
against and for various Fortune 500 companies.
Currently serves as settlement counsel to select clients involved in significant disputes.
Received his mediation training from Pepperdine University's Straus Institute for Dispute
Resolution in 2005. Has participated in over 200 mediations in approximately 20 states as
a client executive, as outside or in-house counsel, and as a party.
• J.D., Duke University School of Law, 1990
22
• B.A., Mississippi State University, 1986
Copyright © 2015 John DeGroote Services, LLC
• Jess K. Alberts & Art Hinshaw,
Negotiation Ethics: An Empirical Assessment
• Roger Dawson,
Unethical Negotiating Gambits and
How to Protect Yourself Against Them
• Lawrence J. Fox,
Those Who Worry About the Ethics of
Negotiation Should Never be Viewed as
Just Another Set of Service Providers
• Daniel Joseph,
A Lawyer’s Ethical Obligations Arising
in the Context of Negotiations
• Jack Marshall,
Unethical Rationalizations and Misconceptions
• G. Richard Shell,
When Is It Legal to Lie in Negotiations?
More Resources
23
Copyright © 2015 John DeGroote Services, LLC
