This program was originally presented on November 15, 2019.
Representing a client in a business, commercial or real estate transaction can get ethically complicated very quickly. There is the question of who you represent. In a closely held company, with multiple shareholders or members, this can be problematic if the officer or manager from whom you are taking instructions thinks you represent that person and not the entity. The client may offer you the opportunity to buy into a transaction, which puts your role as lawyer in tension with your role as investor. There are also substantial ethical issues involved in negotiations and whether a party on the other side of the transaction is represented by legal counsel or not. This program will provide you with a real world guide to the ethics of representing clients in business, commercial, and legal transactions.
- Ethics of representing clients in transactions
- Representation – who is your client? The company’s board or its owners? Do they know that?
- Counter-parties – how do you negotiate on behalf of your client with unrepresented parties?
- Business with clients – can you buy into (or be given) a stake in a client’s business or a transaction?
- Serving on a client’s board of directors – how do you separate your legal role from your fiduciary obligation?
- Negotiations – how do ethics rules limit your flexibility to negotiate?
William Freivogel is the principal of Freivogel Ethics Consulting and is an independent consultant to law firms on ethics and risk management. He was a trial lawyer for 22 years and has practiced in the areas of legal ethics and lawyer malpractice for more than 25 years. He is chair of the Editorial Board of the ABA/BNA Lawyers’ Manual on Professional Conduct. He maintains the Web site “Freivogel on Conflicts” at www.freivogelonconflicts.com. Mr. Freivogel is a graduate of the University of Illinois (Champaign), where he received his B.S. and LL.B.
Thomas E. Spahn is a partner in the McLean, Virginia office of McGuireWoods, LLP, where he has a substantial practice advising clients on properly creating and preserving the attorney-client privilege and work product protections. For more than 30 years he has lectured extensively on legal ethics and professionalism and has written “The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide,” a 750 page treatise published by the Virginia Law Foundation. Mr. Spahn has served as a member of the ABA Standing Committee on Ethics and Professional Responsibility and as a member of the Virginia State Bar's Legal Ethics Committee. He received his B.A., magna cum laude, from Yale University and his J.D. from Yale Law School.
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