"Won’t" Is Not the Same as "Can’t": The Ethics of Settlement Agreements

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The settlement of litigation is often looked to as providing a peaceful resolution and allowing the parties and their lawyers to “get on with their lives.” Unfortunately, this is not always the case. Just as lawyers cannot represent clients in the pursuit of frivolous claims or the presentation of evidence known to be false, there are terms and conditions that lawyers cannot allow to become part of a settlement agreement or sometimes even of the related negotiations. Conflicts or disagreements of this type between lawyers and clients can destroy potential settlements and attorney-client relationships. These considerations oppose the general view that the client calls the shots because the client is the principal.

The best way for lawyers to address these risks is to understand them in advance so that they can be avoided in the settlement process. The faculty presenting this program will provide attorneys with at least some of the tools they need to do so. Get up to date on the scope of what is and what is not off-limits for lawyers under the parameters of ABA Model Rule 5.6; identify and understand the impact of other limitations imposed by lawyers under the ethics rules that can impede clients’ desires as to confidentiality and other restrictions often preferred as part of resolving litigation; hear a problem-solving perspective on these issues drawing on trends the speakers have seen in their ethics and professional liability practices.

Educational Objectives:
• Understand when, whether or how to release lawyers along with their clients.
• Learn the difference between acceptable confidentiality provisions and restrictions on a lawyer's right to represent similarly situated clients in the future.
• Find out about drawing the line between building a truthful record and witness tampering.
• Discover how to avoid "aggregate settlement" pitfalls.

Who would benefit most from attending this program?
Litigators; any attorney desiring to maintain an ethical practice.

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Brian Faughnan practices with Lewis Thomason, resident in the firm’s Memphis office. In addition to lawyer ethics and professional responsibility, Mr. Faughnan’s practice is focused on commercial litigation, appellate litigation, and media law. He is a Litigation Counsel of America Fellow, is listed in The Best Lawyers in America (Appellate Law and Litigation-First Amendment), listed as a “Super Lawyer” by Mid-South Super Lawyers, and has an AV rating from Martindale Hubbell. Mr. Faughnan is a frequent author and speaker on ethics and professional responsibility issues. He writes a recurring column entitled “Faughnan on Ethics” for Memphis Lawyer magazine and is a co-author of Professional Responsibility in Litigation. He is the Chair of the Tennessee Bar Association’s Standing Committee on Ethics and Professional Responsibility and serves as West Tennessee Governor on its Board of Governors.

Mr. Faughnan earned a J.D., magna cum laude, from the University of Memphis and a B.A. from Rhodes College. He is admitted to practice in Tennessee.




Peter Jarvis is a partner in Holland & Knight's Portland office, where he practices primarily in the area of attorney professional responsibility and risk management. Mr. Jarvis advises lawyers, law firms, corporate legal departments and government legal departments about the law governing lawyers. This includes, but is not limited to, matters relating to conflicts of interest, duties of confidentiality, other legal or professional ethics issues, advice on the avoidance of civil or criminal liability, law firm breakups, and questions relating to law firm or legal department structure and operation. Mr. Jarvis is a member of DRI and has received the Oregon State Bar President’s Membership Service Award, and the ALI-ABA Harrison Tweed Special Merit Award.

Mr. Jarvis earned a J.D. from Yale Law School, an M.A. from Yale University, and a B.A., magna cum laude, from Harvard University. He is admitted to practice in Oregon, California, Alaska, New York and Washington as well as before the U.S. Court of Federal Claims; the U.S. Court of Appeals for the Ninth Circuit; the U.S. Districts Court for the Districts of Oregon and the Eastern and Western Districts of Washington, and the U.S. Tax Court.