Negotiating, drafting and reviewing contracts are processes fraught with ethical issues. Negotiations sometimes require zealous advocacy, taking maximal positions; other times, they require delicacy and balance. Reviewing and drafting complex contracts is a similar ethical minefield. If you discover that the draft of a contract contains materially incorrect assumptions about the law but which will benefit your client, do you have the duty to disclose or correct the error? In the same way, if the contract contains faulty assumptions about material facts, must you disclose those faulty assumptions? And how do these rules apply when drafting a contract? This program will provide you with a real world guide to the ethics of negotiating, drafting and reviewing contracts.
• The law – when you know a counterparty has made faulty assumptions benefiting your client, must you say?
• The facts – when a counterparty makes faulty factual assumptions, must you correct?
• Ethics and rescission – are you ever ethically obligated to rescind or restate a contract?
• Ethics in negotiations – what’s the line between zealous representation and deception?
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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.