Legal & Ethical Issues In Financing A Commercial Lawsuit: Borrowing From Peter to Sue Paul

The “American Rule” that each party bears its own court costs has long presented a barrier to complex commercial litigation that only the well-heeled could surmount. The growth of alternative litigation funding, using lending from outside financiers, has started to take hold as a market solution to the age-old problem. Now, complex commercial cases involving blue chip companies, even entire portfolios of litigated claims, may well be financed by and collateralized to a commercial lender. This new means of financing commercial litigation raises new issues. How does the lender obtain and perfect a secured interest in the litigated claim under UCC Article 9, and establish priority over other creditors? How can the lien be enforced? Can the secured interest be sold or transferred? Do litigation finance agreements violate the rule against “maintenance and champerty?” Can the lender obtain information without jeopardizing the client’s claims of privilege? This program will examine these issues and recent decisions, statutes and rules impacting commercial litigation financing, including practical and financial aspects arising from collateralization of litigation claims. The course includes an ethics credit as well.
Who Should Attend: Litigators, commercial practitioners involved in securitizing assets that may include litigated claims and banking lawyers.

6:00 – 6:05 p.m.            Introduction & Overview of Program

Robert E. Wood

6:05 – 6:45 p.m.            Legal Lending, Financing, Funding & Investing –Legal & Ethical Issues from the Funder’s Perspective

How it works, what’s available, what it looks like, individual plaintiff vs. divorce vs. class vs. commercial, etc., ethical concerns and constraints, regulatory framework, privilege, confidentiality, conflicts, control, involvement, funder liability, duty to know, duty to advise, lawsuits, Spitzer agreement, proposed legislation, social policy, etc.

Harvey R. Hirschfeld, Selvyn Seidel & Aviva O. Will

6:45 – 6:50 p.m.            Break

6:50 – 7:10 p.m.            Funder’s Perspective (continued)

When to use various types of funding, how third party funding impacts tactics and strategy, privilege, confidentiality & the lender’s involvement & liability

Harvey R. Hirschfeld, Selvyn Seidel & Aviva O. Will

7:10 – 7:20 p.m.            Panel Questions & Answers

7:20 – 7:25 p.m.            Break

7:25 – 8:00 p.m.            Litigation Funding – View from the Counsel’s Table

A view of the practical, tactical, ethical, legal, regulatory, legislative and social issues from the viewpoint of the practitioner/professional/ethicist.

Professor Anthony Sebok

8:00 – 8:05 p.m.            Break

8:05 – 8:15 p.m.            Panel Questions & Answers

8:15 – 8:20 p.m.            Break

8:20 – 8:50 p.m.            Securing, Collecting & Alienating the Collateral

Sandra Stern                

8:50 – 9:00 p.m.            Final Questions & Answers Session    

Panel                                       

New York Credit:  3.0 total: 1.0 skills & 2.0 ethics
This program provides transitional/non-transitional credit for all attorneys.

California Credit:  3.0 total: 1.0 general & 2.0 professional responsibility
New Jersey Credit: 3.2 total: 1.0 general & 2.2 professional responsibility
Pennsylvania Credit: 2.5 total: 1.0 general & 1.5 professional responsibility

Sponsoring Association Committees: Commercial Law & Uniform State Laws, Janet M. Nadile, Chair & Professional Ethics, Nicole Hyland, Chair

Sponsorship Opportunities are Available! Please Contact: 
Ann Rappleye, Director, City Bar Center for CLE | (212) 382-6606 | ARappleye@nycbar.org or
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Darianne De Leon, Program & Sponsorship Coordinator, City Bar Center for CLE | (212) 382-6731 | ddeleon@nycbar.org