NEGOTIATING WITH EXTORTIONIST GOVERNMENT FUNCTIONARIES

By

Bruce Horowitz

In 1850, during his career in the law, Abraham Lincoln advised a younger colleague:

Resolve to be honest at all events: and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.[1]

Seven score and a dozen years later, at a Harvard Business School symposium on how to handle extortion demands made by foreign public functionaries, the only alternatives suggested were to:

  1. Walk away and lose the deal
  2. Find a local partner to “solve” the situation
  3. Be “pragmatic” in the present situation, but work to improve government ethics in the future[2]

If only these three alternatives are available when a public functionary demands a bribe, then no one but Lincoln’s “knave” would attempt to secure government contracts, services, permits, or timely payment for services rendered. If there are no other alternatives, then Lincoln’s best alternative to a negotiated agreement (BATNA) would be either to stop all work that requires government approval, or to “choose some other occupation” in which one can act honestly.

While leading Negotiation theorists and practitioners have repeatedly declared, and sometimes demonstrated, that you can negotiate with anyone, including kidnappers, terrorists, rampaging rebel leaders, Hitler, Satan, and three-year-old children, there has been little or nothing written on negotiating a government functionary who demands a bribe.[3] Negotiating with government functionaries who have just demanded a bribe has its own combination of ground rules.

Some of the reasons for this lack of reference material include the recentness of open and honest discussion about public corruption, the extremely negative religious, medical, apocalyptic and scatological images and metaphors attached to “public corruption” and the resulting fear and, yes, loathing about direct dealings with “corrupt” government functionaries. Furthermore, the common wisdom is that, in many societies, corrupt public functionaries are omnipresent, omnipotent, omniscient, and perhaps to coin a word “omnefarious” (i.e., just plain all-around bad); that if you want to play you have to pay, and that if you are a player, then you obviously have paid the bribe and are one of “them”.

Moreover, questions immediately arise about the applicability of fundamental Negotiation concepts and principles in relation to government functionary extortion situations, such as

  • Principled negotiation: How do you have a negotiation based on principles with an unprincipled government official?
  • What’s to negotiate? How can you negotiate a bribe which, by its very nature, is unlawful and unethical? How can you negotiate what is rightfully yours in the first place. The “theatre seat” dispute.
  • Anchoring and Bracketing: How can you negotiate a bribe bracketed between monetary values of 1 and 1+x, when you cannot offer more than 0?
  • Win-win I? How (practically) can you increase the size of the pie for a corrupt person? How (morally) can you even consider benefiting a corrupt person?
  • Win-win II: When the extortionist is willing and very able to increase the size of the government’s pie for you.
  • Leveraging: When the other party has absolute and arbitrary control over what you want, and usually has other “buyers” waiting in line behind you, where is your leverage?
  • Preparation I: Extortion demands are not announced in advance, so how can you prepare for them?
  • Preparation II: Dealing with your own personal needs and desires.
  • Preparation III: Dealing with pressure from your support team (family friends, colleagues and supervisors)
  • Preparation IV: Winning over hearts and minds at government bureaucracies
  • Preparation V: Attitude and reputation.
  • Timing: Extortion is a rapid-fire negotiation. How can you slow it down?
  • Fundamental legal/moral duty: Is it not your obligation to immediately stop a negotiating session and denounce a bribe demand to the criminal and administrative authorities?
  • BATNA and Risk Aversion Theory. How to avoid getting lost when the immediate monetary rewards can be great, while the probability of legal sanctions is normally below 5%.
  • Ethical limits: Is there any information from the extortionist that you may not pass back to your client?
  • Understanding the “culture” of the other party in a public extortion situation.

These are the issues that I wish to analyze over the next year with the readers of THE NEGOTIATOR MAGAZINE, and I look forward to discussing the issues once you have read the articles.

Bruce Horowitz, is a founder and Managing Partner of the Quito, Ecuador law firm of PAZ HOROWITZ, Abogados . He has been studying Negotiations and Public Corruption issues since 1985, and has advised international corporate and individual clients on how to comply with Foreign Corrupt Practices legislation since 1989. Bruce has written, taught at the university level and provided presentations and workshops for lawyers, paralegals, law students and others on how to use Negotiation principles and techniques when facing extortionist government functionaries. PAZ HOROWITZ, Abogados is the Trace International representative in Ecuador . Bruce was born and raised in Galion, Ohio, USA. He graduated from Brandeis University (BA 1970) and New York University Law School (JD 1976). Admitted in Alaska 1976, ret. 1990, and Ohio 1985. He is a former Co-chairperson and present Senior Advisor to the ABA International Section’s Committee on U.S. Lawyers Working Abroad, and an active member of the ABA’s anti-corruption committee.

Copyright © Bruce Horowitz, 2007

[1]Carta de Abraham Lincoln, “[1 de julio de 1850(?)]”. ANGLE, P.E., and MIERS, E.S., eds. THE LIVING LINCOLN. Barnes & Noble (New York, 1955, ed. 1992), p. 143.

[2]In Silverthorne, Sean, Editor. “Wrap-up: Careers, Corruption, and Intellectual Capital”. HBS WORKING KNOWLEDGE. 25 Feb 2002, published 6 Sept 2005.

“Ira Belkin, former China Legal Exchange Officer for the U.S. Department of Justice, took a hard stand, saying there is never any justification for breaking the law. He said that even if bribes are a standard way of doing business, you don't want to be the one person caught and prosecuted.”

….

“But David Kang, professor of political science at Dartmouth, took a softer stance. While not advocating bribery, he suggested that the best way around the question is to find a joint venture partner in the country who can solve the situation.”

….

“A third view came from an audience member, who encouraged a "pragmatic" approach. If you quit doing business with corrupt countries, the only victims are the people who live in that country and rely on foreign commerce. Instead, he said, the best way is bring about reform slowly and from within, by working with country officials over time.”

[3]See, “Bridge Ogres and Little Fishes”, article presented by Bruce Horowitz at the International Section of the American Bar Association (ABA) Program, “Running the Ethical Gauntlet: U.S. Lawyers Overseas”, November 2005, New York City (article available upon request from the author). Also, “GANAR-GANAR” CON EL OGRO DEL PUENTE: La aplicabilidad, para los abogados, de la teoría y técnica de las negociaciones en situaciones de extorsión pública” (trans., “WIN-WIN” with the Bridge Ogre: The Applicability, for lawyers, of Negotiation Theory and Technique in Public Extortion Situations”), © 2005 Bruce Horowitz, Diplomate Thesis, Catholic University, Quito, Ecuador. (Copy in Spanish available upon request from the author)