Ethical Pitfalls in Settlement Negotiations

Avoiding Sanctions and Malpractice Liability

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Wednesday, May 6, 2009

Course Materials

This seminar will review the common ethical dilemmas that arise during settlement negotiations and will provide practical strategies for avoiding ethical violations and legal and malpractice liability.

Description

With over 95% of cases settling before trial, counsel must be skilled at negotiating settlement agreements in a way that balances the attorney’s duty of zealous advocacy on behalf of the client against the attorney's duty for honest and ethical conduct.

Gray areas within the ethics rules and opinions governing settlement negotiations raise a number of troubling questions for litigation counsel. An attorney's failure to comply can lead to court sanctions, discipline by a state bar, and the potential for a court to set aside a settlement.

Listen as our panel of attorneys experienced in professional responsibility matters and litigation explains the common ethical pitfalls counsel must avoid when engaging in settlement negotiations. The panel will outline best practices to avoid ethics violations and legal liability.

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Outline

  1. Common ethical challenges in settlement negotiations and applicable ethics rules and opinions
    1. Opinions versus misstatements (Model Rule 4.1)
    2. Restrictions on future representation (Model Rule 5.6(b))
    3. Aggregate settlements (Model Rule 1.8(g))
  2. Penalties for noncompliance
    1. Court sanctions
    2. Bar discipline
    3. Rescission of settlement agreement
  3. Best practices for law firms to avoid ethics violations

Benefits

The panel will review these and other key questions:

  • What are the ABA Model Rules and formal ethics opinions that set forth the expected ethical conduct for counsel during settlement negotiations?
  • Does litigation counsel have an ethical duty or responsibility to correct another party's factual error during the settlement process?
  • Is it lawful for an attorney to either offer or accept an indirect restriction on future representation as a part of a settlement agreement?
  • What are some best practices counsel should employ during settlement negotiations to avoid ethical missteps?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Mark J. Fucile
Mark J. Fucile
Partner
Fucile & Reising

He counsels and trains lawyers, law firms and corporate and governmental legal departments on professional ethics and...  |  Read More

Andrew I. Dilworth
Andrew I. Dilworth
Partner
Cooper White & Cooper

He concentrates in the areas of general business litigation, criminal defense, and professional responsibility. He has...  |  Read More

Avi Kumin
Avi Kumin
Partner
Katz Marshall & Banks

He has developed an expertise in employment discrimination, retaliation, whistleblower claims, employment contracts,...  |  Read More

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