They’re Real.<br />They’re serious.<br />They can be easily avoided.<br />Copyright 2009 William B. Fazio ©<br />Post Sett...
Whether to settle or not, is the client’s decision.<br />But…<br />As their attorney you have a duty to inform.<br />ABA A...
A lawyer must tell the client enough about the “circumstances” of the settlement offer so that the client may consider alt...
1.	The client’s decision<br />2.	The duty to inform<br />3.	The circumstances<br />Three post-settlement pitfalls<br />11/...
Are they aware of all options (cash, structured settlement, trust)?<br />Do they understand them?<br />Do you have it in w...
Do you understand all of your client’s options?<br />Do they need to be protected, is there a gal, what about public benef...
?<br />The circumstances<br />11/2/2009<br />7<br />wbfazio@aol.com<br />
Under what “circumstances” would you have failed in your duty to inform?<br />A catch-all pitfall<br />11/2/2009<br />8<br...
A wealthy client who had been badly injured in an auto accident settles their case for $3 million dollars. Their attorney ...
The defendant offers a structured settlement to a minor’s attorney and gal. the injured minor is on public aid. the parent...
	Was there a failure?<br />A minor plaintiff, with a family member appointed as guardian, is offered a structured settleme...
YES!<br />In all three examples!<br />The answer:<br />11/2/2009<br />12<br />wbfazio@aol.com<br />
The client was not informed of the income tax and asset protection benefits provided by structured settlements. <br />Desp...
By accepting a cash settlement the parents have eliminated their child’s eligibility for public aid.<br />The attorney and...
The attorneys failed in their due diligence to ensure that their client is receiving the best possible rate of return from...
A lawyer must fully explain all ramifications of any offer of settlement.<br />----- ABA Center for professional 			      ...
They’re Real.<br />Wealthy Client: liability on funds lost to taxes.<br />Public Aid: liability on value of future medical...
$ Measure of damages:<br />Wealthy client: hundreds of thousands.<br />public aid: more than four million.<br />Accepted o...
Use a settlement consultant.<br />Put them to work with your other experts (life care planner, financial advisor, etc.).<b...
wbfazio@aol.com<br />Questions?<br />11/2/2009<br />wbfazio@aol.com<br />20<br />
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Post Settlement Pitfalls 2009

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Post settlement can be trickier than you think. Beware of the three major pitfalls.

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Post Settlement Pitfalls 2009

  1. 1. They’re Real.<br />They’re serious.<br />They can be easily avoided.<br />Copyright 2009 William B. Fazio ©<br />Post Settlement Pitfalls<br />11/2/2009<br />1<br />wbfazio@aol.com<br />
  2. 2. Whether to settle or not, is the client’s decision.<br />But…<br />As their attorney you have a duty to inform.<br />ABA Annotated Rules of Professional Conduct<br />11/2/2009<br />2<br />wbfazio@aol.com<br />
  3. 3. A lawyer must tell the client enough about the “circumstances” of the settlement offer so that the client may consider alternatives including retaining other counsel or deciding not to settle.<br />“Duty to inform” client of what?<br />11/2/2009<br />3<br />wbfazio@aol.com<br />
  4. 4. 1. The client’s decision<br />2. The duty to inform<br />3. The circumstances<br />Three post-settlement pitfalls<br />11/2/2009<br />4<br />wbfazio@aol.com<br />
  5. 5. Are they aware of all options (cash, structured settlement, trust)?<br />Do they understand them?<br />Do you have it in writing?<br />The client’s decision<br />11/2/2009<br />5<br />wbfazio@aol.com<br />
  6. 6. Do you understand all of your client’s options?<br />Do they need to be protected, is there a gal, what about public benefits?<br />Are the technical issues (rated age, underwriter ratings, etc.) clear to you and your client?<br />The duty to inform<br />11/2/2009<br />6<br />wbfazio@aol.com<br />
  7. 7. ?<br />The circumstances<br />11/2/2009<br />7<br />wbfazio@aol.com<br />
  8. 8. Under what “circumstances” would you have failed in your duty to inform?<br />A catch-all pitfall<br />11/2/2009<br />8<br />wbfazio@aol.com<br />
  9. 9. A wealthy client who had been badly injured in an auto accident settles their case for $3 million dollars. Their attorney rejects structures as the client is sophisticated and can manage their own money. The client never sees any structure proposals.<br />Ask yourself, was there a failure?<br />11/2/2009<br />9<br />wbfazio@aol.com<br />
  10. 10. The defendant offers a structured settlement to a minor’s attorney and gal. the injured minor is on public aid. the parents reject the defense structure and petition the court to accept a cash settlement. <br />Was there a failure?<br />11/2/2009<br />10<br />wbfazio@aol.com<br />
  11. 11. Was there a failure?<br />A minor plaintiff, with a family member appointed as guardian, is offered a structured settlement. The plaintiff attorney is directed to accept the offer, which they do and settle the case. <br />11/2/2009<br />11<br />wbfazio@aol.com<br />
  12. 12. YES!<br />In all three examples!<br />The answer:<br />11/2/2009<br />12<br />wbfazio@aol.com<br />
  13. 13. The client was not informed of the income tax and asset protection benefits provided by structured settlements. <br />Despite the client’s financial savvy the attorney had a duty to inform. <br />Wealthy Client.<br />11/2/2009<br />13<br />wbfazio@aol.com<br />
  14. 14. By accepting a cash settlement the parents have eliminated their child’s eligibility for public aid.<br />The attorney and gal failed to advise on this and offer a plan of their own that would have preserved the public benefits.<br />Public Aid.<br />11/2/2009<br />14<br />wbfazio@aol.com<br />
  15. 15. The attorneys failed in their due diligence to ensure that their client is receiving the best possible rate of return from the highest rated underwriter.<br />Accepted Offer.<br />11/2/2009<br />15<br />wbfazio@aol.com<br />
  16. 16. A lawyer must fully explain all ramifications of any offer of settlement.<br />----- ABA Center for professional responsibility: annotated rules of professional conduct.<br />Looks like you’d better.<br />Do you know it all?<br />11/2/2009<br />wbfazio@aol.com<br />16<br />
  17. 17. They’re Real.<br />Wealthy Client: liability on funds lost to taxes.<br />Public Aid: liability on value of future medical care<br />Accepted offer: liability on reduced annuity cost.<br />11/2/2009<br />wbfazio@aol.com<br />17<br />
  18. 18. $ Measure of damages:<br />Wealthy client: hundreds of thousands.<br />public aid: more than four million.<br />Accepted offer: more than fifty thousand.<br />They’re Serious.<br />11/2/2009<br />wbfazio@aol.com<br />18<br />
  19. 19. Use a settlement consultant.<br />Put them to work with your other experts (life care planner, financial advisor, etc.).<br />Have your consultant work directly with your client and provide written research, design criteria and proposals. <br />They’re easily avoided.<br />11/2/2009<br />wbfazio@aol.com<br />19<br />
  20. 20. wbfazio@aol.com<br />Questions?<br />11/2/2009<br />wbfazio@aol.com<br />20<br />

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