ABA Forum on the Construction Law Industry Mid ….pptx

American Bar AssociationForum on the Construction Industry2013 Mid Winter MeetingEthics: Throwing in the Kitchen Sink—How Far Can You Go in Presenting Damagesin Litigation, Mediation, andNegotiation?PRESENTERS:Kirsten K. Davis Patrick PoffStetson University College of Law Trenam KemkerGulfport, Florida Tampa, Florida IntroductionClaiming damages and defending damage claimsInvolves all aspects of practiceInvolves the ethics of truth-tellingFive scenarios to test your understandingScenario 1In a demand letter to opposing counsel seeking damages on a disputed construction project, a lawyer (1) exaggerates damages to leverage settlement and (2) although no law allows for attorneys’ fees, threatens to seek fees if forced to sue.Has the lawyer acted unethically?Question 1: Has the lawyer acted unethically?Yes regarding the damages.Yes regarding the attorneys’ fees.Yes regarding both.No regarding both.Telling the Truth Before litigation beginsModel Rule 4.1: no misstatements of material fact or lawPuffing v. untruthful exaggerating“Misusing” the lawRelying on client representationsScenario 2In a dispute over unforeseen conditions, a contractor misrepresented facts to his lawyer about his actual knowledge of the unforeseen conditions prior to contract.Lawyer relied upon these misrepresentations in negotiation, stated them as fact in the settlement agreement, and tendered the agreement to opposing counsel for signature. Contractor’s lawyer subsequently discovered the dishonesty; when confronted, contractor refused to rectify the matter. As an ethical matter, what must the lawyer do? Question 2: As An ethical matter, what must the lawyer do?Immediately contact opposing counsel and correct the misstatement.Immediately contact opposing counsel and correct the misstatement if the client’s acts amount to committing a crime or fraud.Withdraw and disaffirm the settlement agreement.Nothing. The duty of client confidentiality precludes any disclosures.Correcting client st