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Ethics in Negotiation -- The ASC Presentation

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John DeGroote and Susan Hartman's Presentation to Attorneys Serving the Community on March 31, 2015

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Ethics in Negotiation -- The ASC Presentation

  1. 1. 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
  2. 2. Copyright © 2015 John DeGroote Services, LLC 2 Step One: Negotiation Ethics? Oxymorons • Unbiased Opinion • Original Copies • Only Choice …Negotiation Ethics?
  3. 3. 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
  4. 4. Copyright © 2015 John DeGroote Services, LLC 4 Today’s Path • One Area Formal Rules Don't Address • Formal Boundaries • Two Hypotheticals in Perspective
  5. 5. Copyright © 2015 John DeGroote Services, LLC 5 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."
  6. 6. 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.
  7. 7. 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
  8. 8. Copyright © 2015 John DeGroote Services, LLC 8 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
  9. 9. Copyright © 2015 John DeGroote Services, LLC Formal Boundaries 9 Puffery • What is a “material fact”?
  10. 10. Copyright © 2015 John DeGroote Services, LLC Formal Boundaries 10 Commission vs. Omission
  11. 11. 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"
  12. 12. Copyright © 2015 John DeGroote Services, LLC
  13. 13. Copyright © 2015 John DeGroote Services, LLC In-House Counsel Client Law Firm Partner Around The Table 13 Mediator General Counsel Law Firm Associate CFO/Financial Advisor
  14. 14. 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
  15. 15. Copyright © 2015 John DeGroote Services, LLC The Client Representative 15 • Perception vs. Reality • Stated Goals and Obstacles • Hidden Incentives • Hidden Obstacles • The Long Term  BACK TO “AROUND THE TABLE”
  16. 16. 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”
  17. 17. 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”
  18. 18. Copyright © 2015 John DeGroote Services, LLC The CFO/Financial Advisor 18 • Expertise and Perspective • Compensation and Incentives • New Information • Obligations and Constraints • The Executive Committee  BACK TO “AROUND THE TABLE”
  19. 19. Copyright © 2015 John DeGroote Services, LLC The Law Firm Associate 19 • The Client’s Goal • Zealous Advocacy • Preparation • Information Flow • The Firm  BACK TO “AROUND THE TABLE”
  20. 20. 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”
  21. 21. Copyright © 2015 John DeGroote Services, LLC Susan Hartman Founder, 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
  22. 22. Copyright © 2015 John DeGroote Services, LLC John DeGroote President, 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
  23. 23. 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
  24. 24. Copyright © 2015 John DeGroote Services, LLC

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