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Abstract

In 2002, New South Wales, Australia enacted modifications to the Legal Profession Act as incorporated into the Civil Liability Act 2002. One of the more contentious provisions of the amended Act is Division 5C, Part 11, s 198J, which requires that solicitors and barristers determine whether a case has ‘reasonable prospects of success’ before giving legal advice or even filing the case, else be subject to costs orders at best and disbarment at worst. The purpose of this article is to examine section 198J in light of its legislative purpose, judicial interpretation, and impact on the legal profession against the backdrop of acceptable negotiation theory and principles. The author proposes that s 198J may cause the very thing it attempts to eliminate because of the fog surrounding its genesis, interpretation, implementation, and attempted regulation of the legal professional’s negotiation behaviour.

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