Notes from the Editor

• Author: Lauren Catoe
• Pages: 3-3

THE CONSTRUCTION LAWYER 3Volume 42 Issue 2 2022

NOTES FROM THE EDITOR

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