“Mass Actions” Mean Mass Problems: How The Ethics Rules Restrict Lawyers Handling Multi-Plaintiff Claims - Breakout #2

Friday, June 1 
(10:40am - 12:00pm)

Moderator: Nancy Moore
Panelists: Gregory Bubalo, Richard Zitrin

When class actions are unavailable, plaintiffs’ lawyers are increasingly aggregating the claims of hundreds or even thousands of individuals, each of whom has a formal attorney-client relationship with the lawyer. These mass actions present numerous ethical issues. For example, there are conflicts of interest that are present at the outset of the representation, as well as conflicts that arise at various stages of the litigation. Are these conflicts of interest consentable, and if so, what disclosures do the plaintiffs’ lawyer need to make in order to obtain the clients’ informed consent? Is a general consent obtained at the outset of the representation effective for all conflicts that subsequently arise, or do lawyers need to make further disclosures, or perhaps even withdraw from some or all of the cases as the conflicts emerge in a more specific and concrete fashion? Lawyers who negotiate aggregate settlements must comply with the aggregate settlement rule by disclosing the participation of all the plaintiffs, but what if the settlement does not provide for individual settlement offers but rather a process for determining what each plaintiff will receive? Can a lawyer give individually tailored advice to each client whether to accept or reject a proposed settlement? If not, how are the clients supposed to decide what to do? Can the lawyer withdraw from the representation of clients who reject the settlement and insist on litigating their case? What if the lawyer cannot afford to advance the litigation expenses of a small number of cases? What role do MDL judges play in non-class aggregated lawsuits? And how do these issues affect the conduct of the defendant’s lawyer? Our panel consists of lawyers who are experienced in mass litigation on both the plaintiffs’ and the defendants’ side who will share their perspectives on how lawyers on both sides can successfully navigate mass actions without violating their ethical obligations.

Materials

  1. A Rule Without a Reason Let the Market Not the Bar Regulate Settlements that Restrict Practice
  2. THE FENPHEN TRAP Ethical Hazards of a Plaintiff’s Practice in Multi-Plaintiff Multi-Jurisdictional Mass or Class Actions
  3. Kentucky Bar Association Presentation Developments in Classaction and Mass Torts Litigation Procedure in Kentucky
  4. Sample Long Form Contract for GJ Seminar
  5. N Moore Ethical Issues in Mass Tort
  6. St. Mary's SA Mass Plaintiffs 2013
  7. Zitrin TMC 2012 - 11 Mass Plaintiff Cases Part One - On Line copyrighted 121207
  8. Zitrin TMC 2012 Part Two
  9. Zitrin Langford LEITPOL Problem 11 copyrighted material for CLE use only 140617

 View/Print all session materials