American Bar Association

Forum on the Construction Industry

A DARK AND STORMY NIGHT:

THE LAWYER’S Ethical CONSIDERATIONS WHEN INVOLVED IN A MULTI-JURISDICTIONAL, INTERNATIONAL PRACTICE

Michael Black, Q.C.

London, U.K.

and

Troy L. Harris

Atlanta, Georgia

October 25 & 26, 2007

Hyatt Regency Newport Hotel & Spa — Newport, RI

©2007 American Bar Association

table of CONTENTS

I. INTRODUCTION.. - 1 -

II. CATEGORIES OF OBLIGATION.. - 6 -

A. Independence. - 7 -

B. Confidentiality. - 9 -

C. Conflicts of Interest - 12 -

D. Dignity of the Profession. - 13 -

E. Loyalty to the Client - 16 -

F. Fees. - 17 -

G. Competence. - 20 -

H. Professional Courtesy. - 21 -

I. The Rule of Law.. - 22 -

J. Self-Regulation. - 23 -

III. ETHICAL ISSUES IN A MULTI-JURISDICTIONAL TRANSACTIONAL CONSTRUCTION PRACTICE.. - 24 -

A. Ethical Issues Common to Domestic and International Transactional Work. - 26 -

B. Ethical Issues Peculiar to International Transactional Work. - 31 -

IV. MULTI-JURISDICTIONAL DISPUTE RESOLUTION PRACTICE.. - 36 -

A. Ethical Concerns in Communicating with Adverse Parties and Counsel - 36 -

1. Privilege & Confidentiality. - 36 -

2. Negotiation of Settlements. - 44 -

3. Illegal Contracts. - 47 -

4. Money Laundering. - 48 -

5. Conflicts of Interest - 49 -

B. Ethical Concerns in International Arbitration Proceedings. - 52 -

1. Counsel Considerations. - 52 -

2. Evidentiary Issues. - 63 -

V. CONCLUSION.. - 68 -

I. INTRODUCTION

Thanks to ubiquitous state CLE requirements, meetings of the ABA Forum on the Construction Industry regularly feature a segment on ethical issues confronted by construction lawyers. Many of the resulting papers have resurfaced as articles in the Construction Lawyer, so there is a wealth of excellent material available analyzing the ethical issues that arise at various points in the domestic practice of most construction lawyers.