Ethical Issues in Mass Tort Plaintiffs’ Representation: Beyond the Aggregate Settlement Rule

Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an offer of settlement

Choice of Law for Professional Responsibility Issues in Aggregate Litigation

As the rest of the papers in this symposium issue demonstrate, aggregate litigationi raises difficult, often intractable choice-of-law issues for judges, as well as for litigants and their lawyers. Typically, judges must choose among rules governing not only substantive law, but also statutes of limitations, allocation of damages, and punitive damages. 2 What is less well-recognized is that aggregate litigation may also present difficult choice-of-law issues regarding the ethical conduct of the lawyers involved in these cases. So far, these issues have barely surfaced, not because professional responsibility questions have not been raised with respect to aggregate litigation, but rather because most courts apparently assume either that there are no significant differences among the relevant choices 3 or that it is obvious which jurisdiction\u27s rules apply. 4 As for the former assumption, it may once have been true that the ethical landscape was similar no matter where a lawyer practiced; however, over the past few decades jurisdictions have developed increasingly divergent professional responsibility law, whether by adopting different rules of professional conduct or by interpreting the same rules differently. 5 As for the latter assumption, it may be true that representation in litigation raises fewer professional responsibility choice of law questions than other types of representation; 6 nevertheless, representation in litigation poses far more difficult choice of law questions than has generally been recognized. And, of course, any difficulties presented by ordinary two-party litigation are necessarily multiplied when the litigation is complex. Until recently, professional responsibility choice of law issues were rarely raised even in two-party litigation. Most lawyers tried cases in the states where they were licensed, and the professional responsibility rules were often the same wherever a case was tried. 7 This is no longer the case. Recent decades have witnessed an incredible growth in law firms with multistate branch offices and a growing need for litigation and transactional legal services that cross state lines. Moreover, although there was some variation in the versions of the ABA Model Code of Professional Responsibility adopted by almost all states shortly after its initial promulgation in 1969, the more halting acceptance of both the original 1983 ABA Model Rules of Professional Conduct and its subsequent amendments have led to increasing conflicts. 9 It is only a matter of time before the choice of law issues raised by these conflicts come to the surface. The purpose of this brief essay is two-fold. First, I want to note the extent to which professional responsibility choice-of-law issues in litigation may be more complicated than is currently thought to be the case, even when the lawsuits are the typical twoparty variety. Second, I want to briefly sketch the nature of the additional complexities posed by aggregate litigation, including both class actions and individual lawsuits that have been aggregated (whether formally or informally) for various purposes. It is not my intention to offer either a comprehensive examination of these difficult issues or a specific proposal to resolve them. Rather, my goal is more modestly to raise consciousness about the nature of the professional responsibility choice-of-law issues that judges, litigants and their lawyers will almost certainly be confronting in the near and distant future

Conflicts of Interests in the Representation of Children

C ONFLICTS of interests arise whenever the representation of a client may be materially limited by the lawyer\u27s duties to either another client or a third person or by the interests of the lawyer herself.\u27 Analyzing such conflicts typically requires identifying situations involving a potentially impermissible conflict, determining whether the conflict is consentable, and, if it is, obtaining consent after full disclosure.2 Conflicts analysis is difficult enough when the client is an adult.3 When the client is a child, however, the analysis is complicated by a number of factors. For example, in the wide variety of cases in which children (or their interests) are involved, the child\u27s role varies enormously. In some cases, the child is actually a party; in others, the child has a legal interest of some sort; in still others, the outcome will affect the child only indirectly. Moreover, a child\u27s interests can be protected in a variety of fashions, some of which involve legal representation, some of which involve appointment of a guardian ad litem (who may be a lawyer), and some of which involve indirect protection through the participation of the parent. Even when it is clear that the lawyer\u27s role is actual representation, it may be unclear to whom the lawyer turns when decisions on behalf of the child are to be made. In some cases, the child may sue (or be sued) only through the parent as guardian or next friend. In other cases, the child may be named as a party, but the parent may assert the right to make some or all decisions on the child\u27s behalf. In still others, the child may not be a party at all, but the court may permit or assign a lawyer to represent either the child or the child\u27s guardian or guardian ad litem. Finally, the lawyer may choose or be asked to represent more than one party; for example, the lawyer may attempt to represent both parent and child, agency and child, or multiple siblings. All these situations involve at least the potential for conflicting interests; however, only some of the issues raised are amenable to resolution through conflict of interests analysis. Moreover, even among those issues that do fall within the purview of conflict of interests rules, there are several unique aspects of the representation of children which ultimately call for an analysis far more complex than that typically encountered in even the most intractable conflicts issues involving adults

The Complexities of Lawyer Ethics Code Drafting: The Contributions of Professor Fred Zacharias

In this Article, I address three aspects of the special and evolving nature of lawyer ethics codes in order to acknowledge the important contributions of Professor Zacharias. As I hope to show, Professor Zacharias’s publications present a far more complex and nuanced view of the task of drafting lawyer ethics codes than either the Commission or I had contemplated. Although there was not much time then to further address these more theoretical concerns, I am confident that we would have benefitted enormously from a deeper exploration of his scholarship in this area

The Future of Law as a Profession

For far too many years, lawyers and commentators have debated whether law is a profession or merely a business.1 The so-called business-profession dichotomy2 is somewhat of a misnomer.3 For many, maybe most lawyers, law is clearly a business in the sense that these lawyers seek to maximize their individual wealth as much (or as little) as other business persons.4 More importantly perhaps, lawyers in private practice widely acknowledge that adopting improved business practices is critical to providing competent legal services.5 The question remains however, whether, unlike some other commercial occupations, law is also a profession and if so, what is the future for the professional aspects of legal practice in the United States and elsewhere

The American Law Institute\u27s Draft Proposal to Bypass the Aggregate Settlement Rule: Do Mass Tort Clients Need (or Want) Group Decision Making?

The American Law Institute has recently undertaken an entirely new project - Principles of the Law of Aggregate Litigation. The bulk of the project is devoted to class actions; however, a number of sections address various forms of non-class aggregations, and there is an extensive discussion of non-class aggregate settlements, including the controversial aggregate settlement rule . Rule 1.8(g) of the ABA Model Rules of Professional Conduct limits the lawyer\u27s ability to participate in making an aggregate settlement of or against the clients without the informed consent of each client, in which the clients have been advised of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. The ALI Reporters propose to bypass the aggregate settlement rule by creating two exceptions. The first exception applies when the total value of the aggregated claims is more than $5 million and the total number of claimants is 40 or more. In these cases, the proposal allows individual claimants, after consultation with counsel, to agree in advance to be bound to a proposed settlement when 75$5 million. The second exception applies when advance client waivers have not been obtained. Here the lawyer may seek approval for the fairness and adequacy of an aggregate settlement, but the proposal provides no guidelines for determining under what circumstances courts should agree to do so. The reporters give two separate reasons for relaxing the aggregate settlement rule. First, they argue that the rule impedes multi-party settlement and is unnecessary to protect clients, given the 75% approval requirement. Second, they argue that waivers of important rights are routinely granted, and there is no reason not to honor such waivers to enable group decision-making. This article challenges the reporters\u27 assumptions and argues in favor of maintaining the status quo. The author argues that the burden is on the reporters to justify change and that they have not met that burden with respect to either of the suggested rationales