Anecdotal stories tell of an individual lawyer or law firm representing thousands of plaintiffs in some of the recent mass torts. Usually in such cases, advertising and lead generators rounded up the individual claimants. These lawyers argue that there is no way to represent this many clients efficiently other than “by the numbers.” It is safe to say that these claimants are not receiving adequate attorney-client representation. The Burch and Williams paper quoted an observation I had made in the past: No one forced these aggregators to take on more cases than they could handle.
This paper and a recent meeting I attended at Stanford Law School put sharply into focus the issues I would like to discuss in this article. Given that there is inherently some dilution of the traditional one-on-one attorney-client relationship, are there ways of improving the relationship that has evolved so that claimants in mass tort aggregations can be kept better informed?
More can be called for from the transferee judge supervising the MDL in strengthening client relations. First, the judge should require that the appointed plaintiff leadership should keep the individual attorneys well informed, as by writing detailed newsletters. Second, the court can very strongly suggest that the individual lawyers keep their clients well informed of developments. I would not, however, go along with suggestions made at the Stanford meeting that the MDL judge routinely send letters to the individual clients directly. That would be too much of an interference in the private attorney-client relationship.
The MDL judge should also make sure that an easy-to-find and easy-to-use website about the MDL is operating. The court should recognize that lay people will be reading it and explain legal jargon. In fact, the MDL’s website should post information written for the claimants generally, should they choose to read it. Maybe a randomly selected pool of claimants could assess the information’s readability. This would help claimants generally manage their expectations.
The Burch and Williams paper also suggests more involvement by individual claimants in the MDL proceedings: at a minimum, making provisions for them to listen to MDL proceedings live, perhaps on a Zoom link. One can even conceive of having claimants participate with questions and comments on certain occasions—as a sort of “townhall.”
A further reality of mass tort litigation is that each claimant actually has multiple counsel representing her or him. The plaintiff steering committee (PSC), appointed by the court, has the power to act in ways that bind the committee members’ clients, similar to that of lead class counsel. In a bellwether trial, given its impact on other pending cases, the lawyers trying that case are also acting as counsel for all claimants. Further, the lawyers negotiating a settlement can bind clients, as can a settlement master. See Baker & Herman, “Layers of Lawyers: Parsing the Complexity of Claimant Representation in Mass Tort MDLs,” 24 Lewis Clark L. Rev. 469 (2020).
While these lawyers do not replace any claimant’s own, individual attorney, they actually affect the outcome more than the lawyer nominally representing that claimant does. What the claimant’s own lawyer can do is keep an eye on these other lawyers and interpret for the client the roles that they are playing.
In the litigation involving cleanup at the 9/11 site, Judge Hellerstein actually directed that, due to counsels’ “conflicting obligations,” certain clients of a plaintiffs’ law firm be given independent representation. In re World Trade Ctr. Disaster Site Litig., 769 F. Supp. 2d 650, 652 (S.D.N.Y. 2011).
Perhaps the most common gripes from the women surveyed in the Burch study centered on the settlement—they had no idea how the sum they were offered arose, nor why they were being forced to accept it—let alone how many deductions there would be for common expenses, liens, etc. While once again there was an obvious failure of individual lawyers to communicate with their actual clients, there were much larger causes of these failures—ones in part attributable to the role of defendants and defense counsel, who I well realize make up the majority of the readers of these articles.
These days I am more of the follower lawyer—representing some clients and struggling to remain abreast of an MDL that is going on miles away—than one in a leadership role, as I formerly might have been. In the follower position, I can sympathize with my clients and their relative impotence when it comes to understanding proposed settlements. The main vice here is the private nature of MDL settlements where no judge is in overall supervision of the terms and payout of the money. Some plaintiff attorney negotiators may agree to a settlement plan where some very high number of outstanding claimants must accept, usually coupled with the duty placed on the individual lawyers representing a number of plaintiffs to either push them into the terms of the settlement or tell them they will have to stop representing them (and, oh, by the way, no other lawyer is going to take your case). The Burch and Williams study recorded dozens of women saying that they were so treated.
The type of conduct just described borders on unethical attorney behavior and may be outright unethical. But the ethics rules hardly can be counted on to constrain this type of inadequate attorney-client relationship. Rather, the MDL judge should play a role here. The transferee judge has the inherent power to supervise any settlements, to ensure that the clients are fully informed of the terms of the proposal, and to ensure that they are given a free choice to participate or not. This is not an invasion of any individual lawyer-client relationship but a supplement to it similar to the judicial role in class actions. Nor is it an impermissible judicial invasion of any so-called right of the parties to settle their differences. See Rheingold, Litigating Mass Tort Cases § 9:69 (Thomson Reuters 2006).
It may be determined that an MDL judge lacks the inherent power to supervise settlements. In that case, an amendment to the Federal Rules of Civil Procedure would be appropriate, to confer that power, again similar to what Rule 23 mandates a judge do in class action settlements.
Even in the event of an inventory settlement—where the defendant is settling MDL cases firm by firm—the MDL court can assert itself. MDL settlements are not truly a private affair, particularly when MDL judges often order withholding of “common benefit funds” from the same firm’s settled cases.
Some who want to protect or enshrine the attorney-client relationship in the multiple client representation have suggested even more novel ideas, at the Stanford meeting and elsewhere, but I regard these as most unlikely to come into play. For one thing, they seek to limit the number of clients any one law firm can represent. Or they want to give the MDL judge power to determine if specific firms can adequately represent the large number of clients they have. My reaction is this: What criteria would they use, and would judges want to take on such a task?
Also difficult to manage would be a requirement that claimants—as opposed to their counsel—be given an active role in the operation of the MDL, such as by having some voting or reporting rights at the meetings of counsel or during settlement negotiations.
Other non-starter reforms I have heard include giving plaintiffs a Bill of Rights. Some would do away with common benefit funds (something not directly related in any case to the issue here). Similarly unlikely is the suggestion that MDL judges actively remand cases, on the theory that, in post-remand cases, individual clients will have a greater say. However, doing so undermines the very purpose of the MDL.
So, while we all recognize the inevitability of some dilution of the attorney-client relationship in mass tort proceedings, just as other familiar procedures are bent to fit the situation, we should remain on guard to protect the right of our clients to be properly informed of what is taking place and be ready to deal with them personally.
