Negotiation, Erin Brockovich and Flint

Negotiation, Erin Brockovich and Flint

Earlier today, I briefly sat in on a lecture delivered by a senior colleague of mine, MPP (Maarten) van Buuren, on international commercial law and negotiation. During his presentation, he spoke about the Harvard Principled Negotiation method, as elaborated in the seminal Getting to Yes: Negotiation Agreement Without Giving In.

One of the key components of this method is ‘focusing on interests, not positions’, which in other words means focusing on your underlying motivation for a stance on an issue, rather than just the stance itself. This point was underscored by showing a clip from Erin Brockovich (2000), a legal drama about a one-woman crusade against a multi-billion dollar company responsible for industrially poisoning a city’s water supply. In the clip which I have shared below, the novice negotiator sent by the company clearly focuses on positions – a final cash settlement of US$ 250,000 – rather than interests. (At the same time, when assessed against the Harvard criteria, Erin and her lawyer also fall short in some respects)

Aside from negotiation blunders, while watching this video, my interest was piqued by the parallels the movie’s story line has to the ongoing water crisis in Flint, Michigan. (If you haven’t seen it in the news already: there is an unprecedented amount of lead and other corrosive substances in Flint’s water, caused by the local government rerouting the city’s water supply. The new source, the river Flint, is highly toxic. General Motors, the largest corporation in the region, is the only entity that continues to receive clean water.) I had read earlier that Flint-resident Michael Moore had already begun raising awareness of this human and environmental catastrophe but it was quite a coincidence to see today that the real-life Erin Brockovich had also become involved. See Michael Moore and Erin Brockovich’s interviews on this issue below:

Morshed
the Hague

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A few thoughts on Judicial Conduct post-retirement

One of the hot topics of discussion in Bangladesh at the moment concerns the actions of judges post-retirement. As per our Constitution, a retired Justice of the High Court Division of the Supreme Court of Bangladesh may practise before the Appellate Division of the Supreme Court of Bangladesh but the question is whether it is ethical to do so, given the dignity of their position and the post-retirement benefits they enjoy.

The Bangalore Principles of Judicial Conduct (2002), the leading ‘soft law’ instrument on the issue, and Bangladesh’s Judicial Code of Conduct (2000) are silent on the rights and responsibilities of superannuated judges. It is also unclear whether their principles should simply extend to such judges. Perhaps, instead, it is worthwhile to look at the example of the UK and Australia in this regard:

Chapter 9 of the UK’s Judicial Conduct Guide (2013) states that: “9.1. The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/mediator and may receive remuneration for lectures, talks or articles.” Crucially, 9.2 adds: “Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.” In my view, this would seem to extend many of the obligations under the Bangalore Principles to retired Judges.

In contrast, Australia’s Guide to Judicial Conduct (2007) is less explicit about what judges can and cannot do. Chapter 7.2.1 of the 2nd edition of this Guide states that a Judge (re-)joining the Bar “is a “grey area” in which it is not possible to formulate Australia-wide guidelines. A judge contemplating retirement should consult the Australian Bar Association, and the local Bar Association or Law Society for relevant rulings. All however proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years.” Similarly, judges are allowed to engage in commercial and political activities subsequent to retirement but with the same caveat as the UK: “[e]ven in retirement…a former judge may still be regarded by the general public as a representative of the judiciary, and any activity that might tarnish the reputation of the judiciary should be avoided. “

I think this last guideline should also be incorporated in Bangladesh’s Judicial Code of Conduct, to emphasize the need for retired judges to be sensitive to their exalted status in society.

Morshed
the Hague

Can In-House Counsel Keep Secrets? – Lessons from Europe (DRAFT)

In Bangladesh, when a dispute arises between two parties under civil law, the court by its own motion, or either party through an application, may compel the discovery of documents necessary for the subject matter of the proceedings (section 30, Code of Civil Procedure 1908). The documents a corporate party may be required to disclose could be everything from publicly available Annual Reports to sensitive financial documents, granted that they are not subject to confidentiality agreements or statutory protections. While the US is known for having the broadest scope of ‘discovery’, courts all across the globe have been known to order  the disclosure of a broad range of documents for the purpose of resolving a dispute. Traditionally, communication between lawyers and their clients have been a part of the subset of documents that have fallen outside of the scope of this discovery provision because of legal professional privilege.

Legal Professional Privilege protects a client’s communication with their lawyers from disclosure to third parties, thereby averting the possibility of self-incrimination. The cloak of confidentiality allows clients to speak to counsel candidly and counsel to provide unfettered legal advice. Such protection has existed for centuries in the common law (e.g. Berd v Lovelace [1577] Cary 62) and is uniquely tied to the status of law as an independent profession. Lawyers have enjoyed the privilege of confidentiality because, despite owing a duty to their client, they have been required to give frank, independent advice and to facilitate the administration of justice. (Bangladesh Bar Council Canons of Professional Conduct and Etiquette, Canons 10 and 12 of Chapter 2 read together) At arm’s length, a lawyer can render advice by considering both the interests of the client and of justice. In recent years, however, the exponential increase in lawyers becoming salaried employees of major companies has stirred debate regarding their ability to render independent professional judgment. This is because such lawyers not only become part of a corporate hierarchy but have sometimes become involved in commercial decision-making and dispensing non-legal advice. Courts have thus been confronted with the question of whether the privilege of confidentiality should extend to such non-legal communication and have generally held that it shouldn’t do so. (e.g. in Australia, Seven Network Ltd v News Ltd (2005) 225 ALR 672)

This should be of growing concern in Bangladesh as multinationals now have sizable legal departments and they may be required to disclose certain communications with management in open court in the event of a civil proceeding. The question of legal professional privilege viz. in-house counsel has not been explicitly considered by the Supreme Court of Bangladesh but the example of European Union (EU) jurisprudence may be informative. This is especially as many of the multinationals operating in Bangladesh are subsidiaries of European parent companies (e.g. Unilever, British American Tobacco). Therefore, I will first outline the current position regarding legal professional privilege in Bangladesh and the EU respectively before making recommendations on how communication between in-house counsel and the officers, directors and employees of a company can be kept confidential.

Bangladesh

In Bangladesh, communication between Advocates and their clients may enjoy the privilege of confidentiality under section 126 of the Evidence Act. However, such communication must have been made to him confidentially, in his capacity as an Advocate for the client, for privilege to attach to it. While the vast majority of in-house lawyers in Bangladesh have been enrolled as Advocates during their professional careers, the question arises as to whether their employment is in their capacity as an ‘Advocate’ or otherwise. The simple answer is that they are not. Pursuant to Canon 8 of Chapter 4, an Advocate should not, as a general rule, “…be a salaried official…in connection with any such profession or business.” Thus, while practicing as an Advocate, they cannot become a salaried employee of a company. Instead, a lawyer wishing to go in-house may suspend his practicing certificate under Rule 70, The Bangladesh Legal Practitioners and Bar Council Rules, 1972. A corporate lawyer is subject to codes of conduct/ethics that are set by companies for all of their employees, as well as the terms of their individual contracts which will generally include confidentiality clauses. (See British American Tobacco’s “Standards of Business Conduct” and S.S. Shroff, “In-house Counsel and the Attorney-Client Privilege” Lex Mundi (2007)) However, whether this contractual proviso means that client-counsel communication will be shielded from court-ordered disclosure is debatable, as the European example demonstrates.

The EU

The EU does not have a harmonized regime regarding confidentiality but in the AM & S v. European Commission case, the European Court of Justice (ECJ) held that confidentiality attaches to written communication between a lawyer and client, if the communication was made “for the purposes and in the interests of the client rights of defence” and they emanate from ‘independent lawyers’ (paragraph 21, p. 1611). This was re-affirmed more recently in the Akzo Nobel v. European Commission case. Thus, in-house lawyers’ communication is not protected by confidentiality because of their economic dependence on their client and their inability to avoid conflict between their own professional obligations and the commercial aims of their employers. Moreover, they may have duties that not strictly legal in nature. However, this restrictive approach to confidentiality only applies in cross-border, European Commission competition investigations. (DLA Piper, “European Union”, Legal Professional Privilege: Global Guide, 2015) Other disputes, including national competition proceedings, provide in-house counsel greater protection. In the UK, for example, both independent and in-house counsel communication attracts confidentiality, so long as the communication relates to the performance by the lawyer of his professional duty as legal adviser to his client (see Three Rivers District Council & Ors. v. Bank of England [2004] UKHL 48). Recent decisions in Belgium and the Netherlands indicate a similar trend. (Dirk Van Gerven and Freerk Vermeulen, “Legal advice of in-house counsel protected by duty of confidentiality” Lexology, 18 June 2013)

Ensuring Privilege

The lesson from this is that when courts consider the issue of privilege, they give greatest weight to the nature of the communication between in-house counsel and client rather than the lawyer’s formal, professional status. If the dominant purpose of the communication is to furnish legal advice, it will be protected, otherwise it will not. Thus, companies that seek to have their communication with their legal department protected should endeavor to strictly distinguish the department’s legal work from their involvement in other corporate activities. A range of measures may be taken to this effect, from annotating documents with ‘this communication is privileged based on attorney-client relationship’ to restricting the dissemination of such documents to granting the department greater autonomy within the company structure, so as to enable them to exercise independent professional judgment. It also goes without saying that the confidentiality of such communication should be preserved.

On the same note, it would be appreciated if the Bangladesh Bar Council issued a guidance note, clarifying whether, and to what extent, the Canons of Professional Conduct should extend to in-house lawyers.

Leiden
Morshed

My article in this week’s Law & Our Rights

Law Vision: Workers’ insurance law can ensure equitable compensation

The title has been changed and some of the sentences have been omitted, but it looks largely intact: my article on workers’ compensation in this week’s Law & Our Rights. This article is a product of the research I had done in May and June, 2013 to write the ‘Note’ that I had posted on this blog on 27 May, 2013.

Morshed
Dhaka

Law Schools in Bangladesh: Considerable Room for Improvement

I came across an article by noted young legal academic, Dr. Ridwanul Hoque, entitled “Room for Improvement“, that very neatly summarises the ailments that plague Bangladesh’s system of Legal Education.

I found one quotation to be particularly apt:

“Law schools have to do more than merely award degrees and, at best, produce legal plumbers. It is generally accepted that the law must be an instrument of social change and serve constitu­tional aspirations of a just and rule-of-law-based so­ciety…Relevant non-law subjects for legal education include ethics, anthropology, sociology, economics, environment and technology. Our country needs jurists who understand such matters – but it does not train such jurists.”

However, what the author omits is the an alternate route to the Bar in Bangladesh – via foreign legal education. This is an option exercised by an admittedly wealthy cohort of students, but their numbers are not negligible. While few may pursue both their undergraduate and post-graduate legal degrees abroad, many students choose to study under the University of London (External)  Programme in Dhaka and subsequently complete the Bar Professional Training Course (BPTC) in the UK. This latter option has been greatly facilitated by a number of private Institutes in Dhaka and this in turn has led to the proliferation of foreign-educated lawyers and Barristers in recent years.

While such foreign education may go some way towards redressing the concerns raised by Dr. Hoque, of lawyers in Bangladesh effectively being ‘legal plumbers’ rather than jurists, the entry requirements, intellectual rigorousness and academic assessments of distance-learning courses leave quite a lot to be desired. While competent students may become equipped with a passing knowledge of Trusts law, Tort law and EU law, they are, much like their locally-educated brethren, not trained in relevant non-law subjects.

Of course, those who go onto to pursue the BPTC are faced with an altogether more difficult challenge. In the UK, they have to compete with UK domestic students and other international students, some of whom have attended the best Universities in the world. Those who are able to pass the course, after successfully completing assessments in Advocacy, Civil and Criminal Procedure, Evidence, Opinion-writing, Drafting, etc., are certainly steeled for the professional rigours of the Bar. This is especially true now as in the last couple of years the pass marks for BPTC assessments have been ratcheted up and centrally set exams have been introduced.

While raising the standard of entry to the Bar may be welcome, what might compromise such an objective is the recently revamped Bar Transfer Test (BTT), run conjointly by the UK Bar Standards Board (BSB) and BPP-London. This short course, primarily self-taught, except for a taught advocacy component in London, examines candidates’ academic and professional legal knowledge through a series of written exercises, oral assessments, MCQs. The issue, however, is that candidates are able to gain exemptions to the knowledge-based papers if they are able to convince the Qualifications Committee of the BSB that they have studied such subjects during their undergraduate degrees. Now, if there are applicants from a University in Bangladesh, there is a very slim chance that they have been taught EU Law or Tort Law to a sufficient level, yet, much to many people’s surprise, students are gaining exemptions from such Universities. As skills like Opinion Writing and Drafting are also tested through these academic papers, students who are able to gain exemptions, are not tested on these skills either. Much to the chagrin of BPTC students, the entire BTT course can be completed in a number of weeks and as a result, costs much less overall. Moreover, as the course will run twice a year and there is no limit for re-sits, there is scope for candidates to take several stabs at passing the course. As the main pre-requisite of the BTT is that candidates have to be a qualified Advocate from a Commonwealth country of two years standing before an Appellate Court, which in Bangladesh can be the District Court, there are rumblings about whether the proverbial floodgates have been opened and the legal industry in Bangladesh will be inundated with Barristers of greatly varying quality.

I suppose it is still too soon to assess how the BSB will judge such candidates and how great an intake they will allow per annum, but these are worrying signs. The attraction of ‘short cut’ methods to becoming a Barrister might be too strong an incentive for students to compromise on a thorough legal education.

Morshed

Dhaka

Judgment at Nuremberg and Dworkin

This film should be compulsory viewing for all students of Jurisprudence. Despite predating Dworkin and his “Taking Rights Seriously” by a number of years, this film on the prosecution of four Nazi judges marvelously illustrates Dworkin’s theory on ‘hard cases’ and the actions of judges when confronted with the hardest of such cases.

This is best captured by the submission of the inimitable defense attorney, Hans Rolfe (portrayed by Maximilian Schell, who won as Oscar for his role), after the Court has been shown horrifying images and videos of Nazi concentration camps in Dachau and Belsen: “the most ironic part of it is that the prosecution showed these films against these defendants…men who stayed in power for one reason only, to prevent worse things from happening. Who is the braver man? The man who escapes, or resigns in times of peril or the man who stays on his post at the risk of his own personal safety?”

https://i0.wp.com/upload.wikimedia.org/wikipedia/en/thumb/b/b5/170592-Judgment-at-Nuremberg-Posters.jpg/220px-170592-Judgment-at-Nuremberg-Posters.jpg
Source: Wikipedia – Judgment at Nuremberg

– Morshed
Dhaka