Notes from the Editor

AuthorLauren Catoe
THE CONSTRUCTION LAWYER 3Volume 42 Issue 2 2022
continued on page 13
One aspect of the Forum that I
have always appreciated is the
Forum’s programs and publi-
cations (and no, I am not just
saying that because I am the
editor of one of those publica
tions–I promise). Throughout
my career, I have found the
Forum’s programs and publi-
cations to be extremely benecial in terms of developing
and sharpening my skills related to legal issues in the con-
struction industry. Beyond that, the Forum’s programs
and publications have greatly improved my understanding
of the business and technical aspects of the construction
industry, and as someone who started her career as a
construction lawyer with no prior experience in the con-
struction industry, this has been invaluable. Each of the
three articles in this issue of The Construction Lawyer
addresses a topic that relates to the business of construc-
tion. I think the articles in this issue highlight how we can
better serve our clients–and avoid future headaches for
our clients and ourselves–when we have an understand-
ing of our client’s business objectives.
As construction projects become larger and more com-
plex, we often see construction industry participants
pursuing projects under a joint venture relationship. In the
rst article, Construction Joint Ventures–Essential Terms,
Representation Issues, and Potential Claims, authors John
I. Spangler and Deborah Cazan note that, “[b]y forming
a joint venture, contractors pool their expertise, resources,
and nancial wherewithal to jointly perform the project
and share the resulting benets and risks.” When a joint
venture relationship is being considered by a client, there
are certain business-related concepts the client and their
lawyer should ensure are properly addressed in the joint
venture agreement between the client and their venture
partner(s), such as: the scope of the joint venture; owner-
ship interests and the sharing or prots and losses; capital
contributions; management of the joint venture; stafng
the joint venture; insurance and bonding; costs chargeable
to the joint venture by the joint venture partners; nan-
cial controls; defaults; and dispute resolution.
After summarizing each of the foregoing concepts
and making recommendations about how those concepts
might best be addressed in a joint venture agreement, the
authors of this article note that counsel representing a
client forming a joint venture should anticipate that the
joint venture partners may later be involved in a dispute
and should clarify the scope of his or her representation
at the front end of the matter to help avoid a potential
joint representation argument down the road by one of
his or her client’s joint venture partners. The article con-
cludes with a discussion on common types of disputes
between joint venture partners. While our clients often
enter into a business relationship, such as a joint venture
partnership for good business reasons, as their counsel,
we often are more likely to anticipate potential “worst
case scenarios,” and because of that, it is important that
we do what we can to put our clients in the best possible
position should the relationship become contentious, with
disputes occurring.
Erin L. Ebeler wrote the second article of this issue,
Recruiting and Retaining a Qualied Labor Force in the
Construction Industry: What to Strive for and Consider.
Over the past several years, labor shortages have become
an issue in nearly all construction sectors. The COVID-19
pandemic made this already pervasive problem worse for
many of our construction clients. Ebeler’s article provides
practical business strategies and suggestions for contrac-
tors impacted by the current labor market. The author
wisely observes that, in attempting to recruit and retain an
ample workforce, a construction company must do so in a
manner that complies with applicable legal requirements.
With that theme in mind, this article focuses on four main
topics: (1) developing interest in the construction trades;
(2) onboarding; (3) retention and perks; and (4) discrim-
ination issues. In formulating and executing a business
strategy in response to labor shortages, the author pro-
vides the following concluding advice: “Contractors will
need to employ creative thinking to attract and retain
high-quality, skilled individuals; however, many of the
tools to attract and retain talent are highly regulated and
will require legal counsel for proper implementation.”
In Private Equity in the Real Estate Development and
Construction Industries, Benton T. Wheatley discusses the
expansion of private equity funding into real estate devel-
opments involving construction. This expansion largely
has been accomplished by a developer’s establishment
of a limited partnership to act as a project’s owner. The
use of a limited partnership to serve as a project’s owner
entity means that the project’s owner entity has more than
one ownership interest. Depending upon the identities
of the various ownership interests of a limited partner-
ship, there could be divergent nancial or legal interests
between the ownership interests. This potential divergence
of interests may not be apparent to a construction lawyer
who becomes involved with some aspect of a construc-
tion project after the creation of the limited partnership.
In this article, the author brings attention to several pos-
sible “traps for the unwary” construction lawyer that may
arise when private equity and construction intersect, and
he provides tips that will help a construction lawyer who
nds himself or herself at this intersection avoid pitfalls
such as conicts of interest, breaches of attorney-owed
duciary duties, and professional malpractice.
Last, but certainly not least, this issue includes a lovely
Lauren Catoe
By Lauren Catoe

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT