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July 11, 2011

Legal Intelligencer: "Exploring Early Settlements: Sign of Weakness or Ethical Duty?"

See this one in Philadelphia's Legal Intelligencer by Charlotte Thomas of Duane Morris. And if you represent litigation-savvy corporations, think about advocating early settlement in the context of business-to-business disputes. For those clients, it may be an even easier sell. Excerpts:

It is not a sign of weakness to try to settle a case early. It doesn't mean that a lawyer views her case as tenuous and has decided to throw in the towel. Nor does it mean that a lawyer is scared of a prominent opposing counsel or the thought of a jury trial. After all, most of us chose litigation for the thrill of trial, not because we are afraid of it. Rather, trying to settle a case early usually is the right thing to do for our clients to save money, time and the psychological commitment of litigation.

The Rules of Professional Conduct can be read to prescribe an ethical duty to explore early settlement options in litigation. Rule 1.4 directs lawyers to "reasonably consult" with a client as to strategies to accomplish the client's objectives. An attorney-client discussion about settlement is a necessary component of any discussion of litigation "objectives," since settlement is the outcome -- if not the express objective -- of most litigation. Rule 2.1 adds that a lawyer's duty to provide independent professional judgment and candid advice should take into account economic facts that may be relevant to the client's situation.

Posted by JD Hull at July 11, 2011 11:59 PM


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