ETHICAL ISSUES ENCOUNTERED IN MULTI-CLAIMANT LITIGATION. Gray T. Culbreath

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1 ETHICAL ISSUES ENCOUNTERED IN MULTI-CLAIMANT LITIGATION By Gray T. Culbreath Multiparty litigation, whether it be a class action, mass action, or mass tort, presents some unique ethical issues requiring some unique solutions. This paper and the panel discussion address some of the ethical issues encountered by both plaintiff counsel and defense counsel in prosecuting or defending claims with multiple litigants. The paper will examine national rules and law such as the Model Rules for Professional Conduct, the Federal Rules of Civil Procedure, and the Restatement Third, The Law Governing Lawyers. It should be remembered that although most states have patterned their professional rules on the ABA Model Rules (California and New York are the most notable exceptions) and their class action rules on FRCP 23, it is important to remember that key individual state s variations may apply to both. Further, under ABA Model Rule 8.5(b) Disciplinary Authority; Choice of Law, the forum state s ethical rules will generally control professional duties in litigation. The ethical rules contemplate that a lawyer may represent multiple clients. The representation of multiple clients in a single litigation matter is generally permissible so long as the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each client, the representation does not involve the assertion of a claim by one client against another client, and each client gives informed consent, confirmed in writing. Model Code of Professional Responsibility R.1.7(b). The ABA/BNA Lawyers Manual on Professional Conduct cautions that clients seeking shared representation often do not understand the risks and disadvantages of shared counsel, including that there can be no secrets inside the joint attorney/client relationship and that if interests later diverge, the clients may be forced to hire new counsel. ABA/BNA Lawyers Manual on Professional Conduct 51:305 (2005). In multiparty litigation, the controlling ethical rules do not always nicely fit. This dilemma arises because the rules when drafted often did not contemplate the lawyer never actually meeting all the clients he represents. Further, many of the rules emerged when the traditional relationship was one lawyer one client, instead of the world of the mass tort, in which a lawyer may have multiple clients, some of whom he never meets. As a result, often the ethical issues attendant to multiparty litigation are much more defined and prevalent on the plaintiff s side of the Bar than the defense side. However, often times those ethical issues are triggered by actions of the defendant or choices that a defendant forces plaintiff s counsel to make. Against this backdrop, we will consider the various ethical issues presented in this type of litigation.

2 In order to illustrate some of the ethical dilemmas presented herein, the reader should remember the typical mass tort / class action claim. Assume that a train derails near a heavily populated area resulting in a discharge of corrosive and toxic chemicals which does both widespread personal injury and property damage. The offending defendant immediately comes to the scene in an effort to try and resolve claims with potential plaintiffs in advance of the anticipated lawsuits. Notwithstanding those efforts, lawsuits are filed by various plaintiffs counsels from a variety of jurisdictions who purport to represent a variety of class representatives. Ultimately, settlements are proposed, some of which have varying conditions and settlement amounts. In such a scenario, whether or not plaintiffs counsel represents a class or multiple plaintiffs, ethical issues arise that both sides must be wary of. The Lawyer s Duty to Communicate. The rules direct the lawyer to keep the client reasonably informed of the status of the case and explain the matter to the extent necessary for the client to make informed decisions. Model Code of Professional Responsibility R.1.4. This requires the lawyer to explain the progress of the litigation so the client will have sufficient information to be an intelligent participant. However, when a lawyer represents multiple clients in the same or similar matters, that lawyer may not always be able to meet the ethical requirement of effective communication. While the means and methods of communication in today s society have multiplied, studies show that most ethical complaints still continue to arise from a failure to communicate. Communication with Potential Plaintiffs or Class Members. In our fact pattern, defendants may attempt to settle a claim with an individual potential plaintiff or class member. Model Rule 4.2 prohibits an attorney from discussing the subject matter of a case with an adverse party who is represented by counsel unless the attorney obtains the permission of the opposing counsel. One of the most common situations in which there are precertification communications is a defendant s attempts to settle the claim of an individual absent class member. The cases cited in the Manual for Complex Litigation make it clear that the ethics rules do not prohibit such settlements so long as the defendant does not utilize any misleading information in the settlement negotiation. The cases diverge however, as to whether or not the defendant has an affirmative duty to disclose the existence of the class action at the time the settlement offer is made. Communication can likewise be problematic for plaintiffs counsel. With so many means of communication available, often class actions are assembled through means other than the traditional one-on-one meeting between lawyer and client. Often times, this takes the form of direct mail, the internet, or other media. ABA Comm. On Ethics and Professional Responsibility Formal Op (2007) and Comment 4 to ABA Model Rule 7.2 both address marketing in the class action context. The former concludes that both the First Amendment and the ABA Solicitation Rule generally will allow direct contact with prospective clients through targeted mail (See Shapero v. Kentucky Bar Association, 486 US 466 (1988) and ABA Model Rule 7.3(b); See also Gulf Oil v. Bernard, 452 US 89 (1981) (reaching the same conclusion under 2

3 FRCP 23). The latter notes the court required notices to potential class members had been permitted under the marketing rules. However, in-person solicitation is more limited under the First Amendment and ABA Model Rule 7.3 (a). Under the former, Ohralick v. Ohio State Bar Association, 436 US 447 (1978) generally denies First Amendment protection to in-person solicitation involving potentially coercive circumstances. Under the latter, ABA Model Rule 7.3(a) generally limits in-person solicitation to situations involving close family or personal relationships or prior professional relationships. Representation of Multiple Plaintiffs. In most mass torts or other similar actions, many plaintiffs are represented by the same counsel. This representation raises its own set of issues, some of which are resolved by the ethical rules but many are not. These issues frequently arise because the lawyer acts on behalf of a group which cannot effectively control the lawyer s conduct of the litigation. Some commentators suggest that the ethics rules should be revised as they apply to class action matters. The ABA Model Rules permit multiple representation of non-adverse clients provided there is suitable informed consent in advance. The ABA Model Rules further require that the lawyer reasonably believe that multiple representation will not adversely affect the lawyer s ability to adequately represent each of his clients. The issues that typically arise in multiple representation situations are: (1) the potential existence of conflicts in a joint representation, how to minimize them and obtain informed consent; (2) the nature of the informed consent which is needed; (3) issues arising from the joint settlement of plaintiffs claims and (4) the attorney s obligations if conflicts arise subsequent to obtaining informed consent to the multiple representations. Section 125 of the Restatement Third, The Law Governing Lawyers suggests that a lawyer, where bringing a claim as a class action, might materially and adversely affect the interests of the individual client that possibility must be disclosed to that client. See Comment f Section 128 of the Law Governing Lawyers, d(iii) which suggests the following analysis: Not all possibly differing interests of co-clients in complex and multiparty litigation involve material interests creating conflict. Determination whether a conflict of material interests exists requires careful attention to the context and other circumstances of the representation and in general should be based on whether (1) issues common to the client s interests predominate, (2) circumstances such as the size of each client s interest make separate representation impracticable, and (3) the extent of active judicial supervision of the representation. The Restatement then goes on to analyze the conflict analysis in a class action context, stating: Similar considerations apply in representing multiple co-parties in class action proceedings, due to the possible existence of different objectives or other interests of class members (see also Section 125 on creation of settlement of class actions). A plaintiff class might agree for example that the local school system discriminates against a racial or ethnic minority, but there might be important 3

4 differences within the class over what remedy is appropriate. (See 14, Comment f.) While these conflict issues are more prevalent among plaintiff s counsel although the same analysis can be undertaken in the rare circumstance when a defendants class is certified and those defendants are represented by a single or small group of defense counsel. Client conflicts which potentially arise can include both current and future clients. Among current clients, conflicts can sometimes be resolved by the formation of subclasses within a class action. However, notwithstanding the formation of subclasses, conflicts may arise among classes of plaintiffs with differing degrees of injury or loss. The asbestos cases present these conflicts most clearly. Those with serious cancer diseases want their cases tried first and most strongly. Clients with less serious asbestosis and pleural-plaque symptoms do not want to wait even though their damage is less severe. All these cases cannot be tried at once. Therein lies the conflict for the lawyer who represents clients who fall into both camps. A more difficult ethical issue is sometimes the problem of future claimants who are not yet represented by a lawyer. This issue is often seen in some forum in mass tort cases because long latency periods are needed to discover injuries and a limited fund of money may not necessarily be available later to compensate everyone fully. Of course, the rules, while addressing current clients (1.7 and 1.8) and former clients, client conflicts which potentially arise can include both current and future clients. Issue Conflict. A final conflict issue, common both to plaintiff and defense counsel, is the concept of issue conflict where counsel may take a position in a current matter that is adverse to a client in another matter. As a general rule, the ethical rules do not prohibit an attorney from taking one position on a legal issue for one client, and then assuming the opposite position on the same issue for another client. Rule 1.7(b), however, does prevent a lawyer from undertaking representation, if the lawyer believes that representation will be material limited by his responsibilities to another client. By implication, a material limitation could result from a significant issue conflict. Comment 9 of the ABA Model Rules of Prof l Conduct interpret the limitation this way: It is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time at the appellate level. ABA Formal Op (October 16, 1993) stresses that lawyers should examine issue conflict carefully in both trial and appellate courts. The District of Columbia bar legal ethics committee found that an issue conflict can create a Rule 1.7(b) violation if, as a practical matter, the result in one case may reasonably be anticipated to adversely affect the outcome in the other. D.C. Bar Legal Ethics Comm. Op. 265 (March 20, 1996). As the committee stated, 4

5 If an objective observer can identify and describe concrete ways in which one representation may reasonably be anticipated to interfere with the other, then a cognizable conflict arises... and disclosure must be made in the waiver sought. Representation of Multiple Defendants The Rules governing ethical conduct are identical whether the client is plaintiff or defendant, and whether an attorney represents single or multiple clients. The current version of the ABA Model Rules of Professional Conduct 1.7 states: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third party or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest in paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. The comments to Rule 1.7 contemplate consentability of each separate client to multiple representation. If the attorney cannot reasonably conclude that he can competently and diligently represent the interest of each client, then consent of the clients cannot be sought (an unwaivable conflict). If the attorney reasonably believes that he can meet the two pronged inquiry, then informed consent may allow multiple representation. Rule 1.0(c) defines informed consent as the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. One area that should be addressed in the information shared with each client is that of privilege and confidentiality: among jointly represented clients, neither privilege nor confidentiality (among the clients) exists. While consent to waiving future conflicts that might arise out of current representation is possible under Rule 1.7(b), if conflicts arise that would alter consentability, then consent previously obtained is likely invalid. See ABA Committee on Ethics and Professional Responsibility, Formal Opinion The distinction between a concurrent waiver and a future waiver is that it is unlikely that all circumstances of a conflict which has not yet arisen can be contemplated. No lawyer can rely with ethical certainty on a prospective waiver of objection to future representation simply because the client has executed a written document to that effect. 5

6 The two main criteria the courts have considered in analyzing whether a waiver of future conflicts would be valid are: (1) was the party fully informed about the nature and possibility of conflicts and (2) was the waiver knowing, or made by a party who was aware of the consequences of the waiver. Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100, 1105 (N.D. Cal. 2003); General Cigar Holdings, Inc. v. Altadis, S.A., 144 F. Supp. 2d 1334, 1339 (S.D. Fla. 2001); University of Rochester v. G.D. Searle & Co., Inc., 2000 WL (W.D. N.Y. 2000). Although courts tend to take an unfavorable view of blanket future conflicts waivers, there is no requirement under the ABA Model Rules that every possible conflict be considered in the waiver. Rochester, 2000 WL , at *10; Visa, 241 F. Supp. 2d at One factor a court will consider is whether the waiving party was aware of the potential for the conflict when it agreed to the waiver. Visa, 214 F. Supp. 2d at In Visa, the party seeking the disqualification of the opposing party s counsel was aware at the time it agreed to the waiver that it was about to introduce a product that might infringe on the plaintiff s trademark. Id. Therefore, the court determined that the complaining party agree to the waiver in order to obtain the legal counsel they needed for a separate suit, and could not claim that they were uninformed about the potential for conflicts. Id. Courts have also considered the sophistication of the waiving party, generally finding that a corporation that is familiar with legal service should not be able to avoid a waiver of future conflicts at a later date by claiming it was uninformed or did not know the consequences of its waiver. Id; General Cigar Holdings, 144 F. Supp.2d at Finally, the court will consider the ability of the attorney to vigorously represent his client and whether there is the possibility that any confidential information learned in the course of the attorney-client relationship could be used against the waiving party. Rochester, 2000 WL at *6 (noting generally that it is only in cases in which the ability of the attorney to represent his client is undermined or there is a risk of privileged information being used against one side that the court will order disqualification). Joint Defense Agreements. A separate but important consideration arises when an attorney for one client joins a group with a common interest. A joint defense agreement can create a host of ethical issues unintended by the parties at the time they enter into the arrangement. For example, a joint defense agreement can create fiduciary relationships between attorneys and parties who are not their clients. See e.g., Int l Trust Corp. v. Pirtle, No CV, 1997 WL at *10-11 (Tex. App. 1997) (holding that the obligation to preserve all confidence exchanged under such an agreement transforms into a fiduciary relationship between the participating attorneys and their non-client co-defendants). The Seventh Circuit has held this fiduciary relationship can exist even in the absence of an express attorney-client relationship. See Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 6

7 F.2d 1311, (7th Cir. 1978). Further, using any information gained under the agreement to the advantage of one party over another would result in a breach of that fiduciary duty. Another conundrum created by the joint defense agreement is the potential to disqualify counsel either from a joint defense group, such as when one member of the group switches allegiance or because of a conflict of interest. As noted by one court, even if a joint defense agreement specifically provides the lawyers do not owe a duty of loyalty to any other client of a joint defense group, a confidentiality provision places a fiduciary duty on the attorney and thereby disqualifies them if he represents adverse interests. See Nat l Med. Enters. Inc. v. Godbui, 924 S.W.2d 123, 132 (Tex. 1996). Additionally, one member of the defense group s conflict can be imputed to an entire defense group there by raising the potential that a party could seek to disqualify all of the lawyers. See, e.g., Essex Chem. Corp. v. Hartford Acc. & Indem., 993 F.Supp. 241 (D.N.J. 1998); GTE N., Inc. v. Apache Prod., Co., 914 F.Supp (N.D. Ill. 1996). At least one court has found that a joint defense agreement establishes an implied attorney-client relationship with [a] co-defendant. United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000). These potential issues highlight the need for counsel to be aware of the facts and circumstances surrounding the joint defense. A lawyer who has represented one, but only one, of the parties in a joint defense consortium does not thereby acquire an obligation to the other parties to the consortium that poses an ethical bar to the lawyer thereafter taking on a related representation averse to any of the other parties. However, the lawyer s obligations to the party he represented may present such a bar, and the lawyer will almost certainly have undertaken fiduciary obligations to the other parties that have the same effect. There should be no question that confidential information gained by participation in a joint defense endeavor under Model Rule 1.6 cannot be revealed without the consent of the former client and others who were parties to the joint defense endeavor. There is likewise, no ethical bar to an attorney who previously represented a client in the joint defense group from engaging in litigation adverse to one of the members of the joint defense group. What may preclude the new representation is that pursuant to Model Rule 1.7(b), the attorney may be materially limited in his new representation by the privileged information he already possesses. See Ashley & Wynne: Dealing with Conflicts in Joint Representation of Defendants in Mass Tort Litigation, 17 Rev. Litigation 469 (1998). In Great American Ins. Co., Inc. v. Christopher, 2003 WL (N.D. Tex. 2003), the court noted the general rule that although a lawyer-client relationship does not exist between the lawyer who represents only one party in joint defense and the other party, that attorney may not take information given to him by a co-defendant and then later use that information in an adverse suit against that same co-defendant. Id. at *5. However, the court further held that although there may be a duty to keep confidences, this will not preclude an attorney and client from acting in their own best interests, even up to the point of using information disclosed by others in ways that conflict with the others interests. Id. at *6 (citing National Media Enter., Inc. v. Godbey, 924 S.W. 2d 123, 129 (Tex. 1996)). The court ultimately found that although the opposing party and the attorney whose conduct was in question had an agreement that the information would not be disclosed to third parties, this would not preclude the attorney from 7

8 representing his client in the suit at hand because even though the suit puts certain information obtained from [the defendant] in the public record, thereby revealing secrets to third parties, it cannot be said that [the attorney] betrayed confidences in violation of a fiduciary duty. Id. at *7. In contrast, in City of Kalamazoo v. Michigan Disposal Service, 151 F. Supp. 2d 913 (W.D. Mich. 2001), the court decided this issue the opposite way, finding that because the attorney in question was exposed to confidential information, he could not represent his client in an adverse suit against the party that disclosed the information. Id. at 921. The court found that the attorney s claim that he only represented the actual joint defense group and not the clients that made up the group was illogical, as without all of its members, the joint defense group had no reason to exist. Id. at The court further noted that the fact that each member of the group was notified that it had the right to separate counsel supported the finding that an attorneyclient relationship existed between the attorney and all of the separate members of the joint defense group, thereby precluding the attorney from representing any party adverse to these clients on the same or substantially related matter. Id. at Payment of Class Representatives. In recent years, the practice of payments to named plaintiffs or hiring a plaintiff has come to light through the indictment and ultimate guilty pleas of the law firm Milberg Weiss and two of the firm s partners. The indictment alleged that kickback payments had been made to three individuals, Seymour Lazar, Paul Selzer, and Howard Vogle, to secure their cooperation as named plaintiffs in class action litigation. Beyond the obvious criminal implications involved in these actions, these actions also pose an ethical problem; namely, they lead to a possible conflict of interest between the paid plaintiffs and the class. The Milberg Weiss indictment stated in relevant part: Additionally, the kickback arrangements created a conflict of interest between the paid plaintiffs and those to whom they owed fiduciary duties because, as a result of the kickback arrangements, the paid plaintiffs had a greater interest in maximizing the amount of attorneys fees awarded to Milberg Weiss than in maximizing the net recovery to the absent class members and shareholders. See First Superseding Indictment, United States v. Milberg Weiss Bershad & Shulman, LLP, David J. Bershad, Stephen G. Shulman, Seymour M. Lazar, Paul T. Selzer, CR (A)DDP(C)(D) Cal. (May 18, 2006). The Milberg Weiss indictment and the subsequent guilty plea brought light to a practice which created a group of repeat plaintiffs who were bound to a particular law firm so that it could receive payments in future litigations. This has the potential to be highly dangerous to absent class members in those suits where the firm would, like the litigation, handle it in a way that is not in the best interest of the firm. Curiously, some commentators wrote in support of the payment of plaintiffs. See Bruce H. Cobayashi and Larry E. Ribstein, Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation, 2J. Bus. & Tech. L. 369 (2007). This ignores the ethical rules regarding conflicts of interest as applied to class action litigation under which the attorneys for the class represent the entire class and therefore the interest of all the members of the class must be closely aligned. To avoid 8

9 allowing these interests to diverge, payments to lead plaintiffs are limited by both ethical rules and state law. Incentive Award to Class Representatives. A similar set of issues arises in the context of incentive awards to plaintiff class representatives. In some instances, class representatives may receive incentive awards at settlement compensation for their extensive involvement in a class action lawsuit. These awards are typically allocations to class representatives over the amount of any judgment obtained by any other member of the class of course, typically analyzing incentive awards for fairness to absent class members. See FRCP 23(e)(1)(C). To assist in conducting this fairness analysis courts generally consider the following five factors: 1. The risk to the plaintiff in a commencing suit, both financially and otherwise; 2. The notoriety and / or personal difficulties encountered by the representative plaintiff; 3. The extent of the plaintiff s personal involvement in the suit in terms of the discovery responsibilities and / or testimony at depositions or trials; 4. The duration of the litigation; and 5. The plaintiff s personal benefit (or lack thereof) purely in its capacity as a member of the class. In Re Bioscience SCC. Litig., 155 F.R.D. 116, 121 n. 14 (E.D.Pa. 1994). Among the ethical concerns that arise from incentive payments to class representatives include conflicts between the class representatives and other class members; collusion between class representatives, class counsel, and defendants; and possibilities of bidding wars among attorneys to attract class representatives in potential frivolous litigation. Among these potential problems, we will briefly address the issue of collusion. In some instances, incentive awards can facilitate collusion between class representatives, class counsel, and defendants. The class representative and the defendants could make what amounts to a separate deal contrary to the interests of the other class members. See Women s Comm. For Equal Emp. Opp. v. Nat l Broadcasting Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977). That court noted that the class action mechanism should not be used as a hammer at the head of the defendant for the purpose of extracting benefits from [class representatives] at the expense of the members of the class. Id. at 180. See also Franks v. Kroger Co., 649 F.2d 1216 (6th Cir. 1981). Ethical Issues and Settlement of Multiparty Litigation. The issue of settlement raises a number of difficult issues when multiple plaintiffs are involved. Model Rule 1.8(g) provides in relevant part that: 9

10 A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients... unless each client gives informed consent, including disclosure of the existence and nature of all claims... involved in the participation of each person in the settlement. See also comment 13 to Rule 1.8. Settlement decisions can create a variety of conflicts between co-plaintiffs. It is frequently the case that a defendant will not want to settle a case piecemeal but instead will condition settlement on a global resolution among the parties. If some but not all of the plaintiffs wish to settle the matter, conflict can develop among the co-plaintiffs. Some plaintiffs may have an interest in vindicating a larger interest ( the principle of the thing ) while other plaintiffs may not share this goal and instead want to receive a monetary settlement. Another common conflict occurs among plaintiffs when apportioning or distributing settlement monies. Although Rule 1.8 prohibits attorneys from making an aggregate settlement of the claims without consent of the client, defense counsel often presents settlement offers in that manner. While it is not considered unethical for a defendant to make such blanket settlement offers, see, e.g.. N.J.S.Ct. Adv. Comm. Prof. Eth. Op. 616, Blanket Settlement Offers to Multiple Plaintiffs (September 22, 1988), the plaintiffs attorney is potentially confronted with a conflict of interest. When co-plaintiffs do not consent to the lawyer s participation in the aggregate settlement discussions, those plaintiffs can find themselves bidding against one another to secure the larger share of the settlement monies the defendant has offered or would be prepared to pay. Additionally, co-plaintiffs might differ on the type of relief they were willing to accept creating yet another type of conflict. This is particularly true in the employment context where an employer may be willing to pay a large sum of money for the plaintiffs to forego reinstatement or the right to reapply for a position with the company. This could be acceptable to one plaintiff who has gotten a job in the interim but not acceptable to the unemployed plaintiff who would like to return to the company. In the class action context, the ABA Model Rules rely principally on the procedural safeguards built into the class action rules principally the fairness hearing requirements of FRCP 23(e) to ensure that clients are adequately protected in settlements. In particular, Comment 13 to ABA Model Rule 1.8 notes that class action settlements are not measured by Model Rule 1.8(g) s aggregate settlement standards in light of the alternative procedural protections afforded by the class action rules: Lawyers representing a class of plaintiffs or defendants... may not have a full client / lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to insure adequate protection of the entire class. In addition, Comment 9 ABA Model Rule 1.5 notes that class counsel s fees are set through procedural mechanisms primarily FRCP 23(h) in federal cases to both appropriately 10

11 compensate class counsel and to insure the reasonableness of the fees awarded from the perspective of the class members. Of course, one of the troublesome issues that arise in class action litigation settlements is the negotiation of fees during the settlement process. During settlement negotiations, a lawyer may not subordinate the client s interest in a favorable settlement to the lawyer s interest in the fee. In ethical guidelines for settlement negotiations, 2002 ABA Litig. Sec. n. 6, 41, Section 4.2.2, class counsel must avoid creating a conflict by negotiating attorneys fee deal that creates a benefit for counsel that is greater than the benefit conferred on the class as a whole. Ramirez v. Sturdevant, 26 Cal. Rptr. 2d 544 (Ct. App. 1994). Some courts have concluded that simultaneous negotiations of the settlement fund and counsel fees create an inherent conflict of interest. See Lisa F. v. Snider, 561 F.Supp. 724, 726 (N.D.Ind. 1983). Similarly, in Prandini v. National Tee Co., 557 F.2d 1015 (3rd Cir. 1977), the Third Circuit held that settlement for the damages aspect of the class action must be concluded separately from and prior to the negotiation and award of attorneys fees. The difficulty presented by this piecemeal approach is rooted in settlement negotiation dynamics the parties generally need to know what the total package is before giving final agreement. What is the Duty of Counsel for a Defendant who Settles Multiple Claims Against the Defendant for a Single Sum if: a. He has reason to believe that plaintiff counsel is not getting individual consent of each plaintiff as required by Rules of Ethics; or b. He knows that there are both seriously ill plaintiffs and unimpaired plaintiffs whose claims are being settled for the single sum? Although a client s zealous representation is always circumscribed by the Rules of Ethics, in the preceding questions the implication is that an ethical duty might exist to someone other than the immediate client. Such a duty, if it exists, could derive from either Rule 8.3 or 8.4. Rule 8.3 provides that (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. Rule 8.4 states It is professional misconduct for a lawyer to: 11

12 (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another... The precise question in the first question as it relates to Rule 8.3 is whether knowledge that a plaintiff attorney who has not obtained the informed consent of each client to a settlement is acting with questionable honesty, trustworthiness or fitness requiring reporting to the appropriate authorities. The second question raises whether an offer of a settlement to multiple plaintiffs with differing interests, where the offering attorney believes that the multiple representation violates the Ethical Rules, is knowingly assisting or inducing the plaintiffs lawyer to violate the Rules. See Pa. Informal Ethics Opinion (1997) (requiring reporting by a lawyer who believes opposing counsel s representation of two clients poses impermissible conflict in spite of their consent, if there is reliable information that opposing counsel s relationship with one or both will be adversely affected). However, New Jersey Opinion 616 (1988) 1988 WL356373, 122 NJLJ 764 (1988) seems to absolve an attorney offering an aggregate settlement from any implied third party duty: A lawyer may undertake representation of multiple plaintiffs in a matter even though the defendant may make a blanket settlement offer that is contingent on acceptance by all of the plaintiffs and that will likely give rise to a conflict of interest between the plaintiffs if all do not choose to accept the offer. The conflict here is not inherent in the representation, but arises from the divergent reactions of the plaintiffs. The lawyer, however, may not offer to participate in making aggregate settlement of clients claims without informed consent of each client. It follows that it is not improper for the defendant s attorney to offer such a contingent blanket settlement offer because it is not the offer but the plaintiffs response to it that creates a conflict. Rule 1.8(g). Cf. Williams v. St. Paul Companies, 492 S.E. 2d 560 (Ga. Ct. App. 1997), cert. den. (insurer did not interfere with contractual relationship between lawyer and client by offering aggregate settlement, because the problem was one of representation of multiple clients). What are the Ethical Rules Applicable to Aggregate Settlement of Which the Attorney for Settling Defendant Should be Aware? Rule 1.8(g) states: (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients,... unless each client gives informed consent, in a writing signed by the client. The lawyer s disclosure shall include the existence and nature of 12

13 all the claims or pleas involved and of the participation of each person in the settlement. (emphasis added) While the newer version requires the consent to be in writing, even settlements under the previous version required (1) disclosure of all settlement terms to clients, including disclosure to each of what other plaintiffs are to recover or what other defendants are to pay; (2) unanimous consent by all clients to all settlement terms; and most importantly, (3) a prohibition on agreements to waive requirements (1) and (2) even with the client s unanimous consent. Silver & Baker, Mass Lawsuits and the Aggregate Settlement Rule, 32 Wake Forest L. Rev. 733 (1997). Thus an attorney with even two clients a husband and wife cannot settle their claims without the consent and knowledge of both. As noted by In Re: Faucheaux, Jr., 818 So. 2d 734 (La. 2002) (applying Rule 1.8(g)), this is exacerbated as the numbers of clients rise. Toops, Ethically Representing Thousands of Plaintiffs; Conflict Problems in Mass Toxic Harm Cases, 67 Def. Coun. J. 462 (2000). Hayes v. Eagle Picher Industries, Inc., 513 F. 2d 892 (10 th Cir. 1975) (noting all clients must consent to aggregate settlement because attorney is merely agent for client in negotiation and settlement). In Straubinger v. Schmitt, 792 A. 2d 481 (N.J. Super. 2002), the court noted that the aggregate settlement discussed in Model Rule 1.8(g) could also apply to a situation in which an attorney who is representing multiple clients attempts to apportion a settlement among them out of single limits insurance coverage, especially when that attorney is aware that the total damages to which his clients might be entitled exceeds the amount of the insurance policy. Id. at 486. Settlements Which Require Plaintiffs Counsel Not to Sue the Defendant Again. Another issue that frequently occurs in class action litigation are attempts to buy out plaintiff s counsel to prohibit him from bringing additional related lawsuits. Model Rule 5.6 provides a lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer s right to practice is part of the settlement of a client controversy. Many jurisdictions have the same or similar disciplinary rules. Several ethics opinions address this type of restriction. In ABA Formal Op , the committee stated that a restriction on the right of plaintiff s counsel to represent present and future claimants against a defendant in a mass tort class action as part of a global settlement of existing client s claims is an impermissible restriction on the right to practice. Any demand for or acceptance of such a restriction is a part of a settlement violation of Model Rule 5.6(b). Such a settlement may be in the interest of some of the lawyer s present clients because the defendant may be willing to offer more consideration than it might have otherwise. If the clients wish to accept the settlement containing this restriction, normally, under Rule 1.2, a lawyer would be required to abide by the client s instruction, but Rule 1.2 must be read in conjunction with the limits of Rule 5.6 which prohibits these restrictions. In In Re Hagar, 812 A.2d 904 (D.C. Cir. 2002), the District of Columbia Court of Appeals took a dim view of the conduct of an attorney who, among other things, agreed to never disclose to anyone information learned during his investigations and that he would never represent anyone with related claims against the opposing party. Citing ABA Comm. on Ethics 13

14 and Professional Responsibility Formal Opinion , the court listed three reasons why the prohibition on a lawyer agreeing not to sue the defendant should be enforced. First, it restricts the public s access to an attorney who might be in the best position to held them with their claim; second, it results in awards that have less to do with the merits of the client s claim and more to do with paying off the attorney; and third, it creates a conflict of interest between the client and his lawyer. Id. The attorney who participated in the settlement had his license suspended for one year, with the potential for disgorgement of his fees at the time he is reinstated. Id. at 924. In addition to sanctioning the plaintiff s paralegal who was instrumental in concocting and accepting settlement that restricted his ability to practice, in Adams v. Bellsouth Telecommunications, Inc., the court additionally sanctioned the offering attorneys WL , at *10 (S.D. Fla. 2001). In Adams the representatives for both parties agreed that in exchange for a settlement for the plaintiffs and a consulting fee for their representation (which would come out of the money allocated for the plaintiffs recovery), the plaintiffs representatives would not represent anyone against the defendants. Id. at *1. The court noted that although there may be occasions when a practice restriction is necessary to prevent the disclosure of confidential information, there was no such justification in this case, and the agreement was a blatant violation of the rules for professional conduct. Id. at *6. The defendant s lawyers were required to complete five (5) hours of ethics classes before being reinstated to practice before the Federal Court for the Southern District of Florida. Id. at *10. The plaintiffs attorney s paralegal was subjected to investigation by the Florida Bar for his unethical, and possibly criminal, conduct. Id. at *11. See also Burrows v. Arce, 997 S.W. 2d 229 (TX 1999) (remanding for further briefing on breach of disciplinary rules, but upholding the right to rescission of fee for breach of fiduciary duty to client in reaching aggregate settlement without consent). These prohibitions also can create ethical problems for defense counsel. For example, a former in-house attorney at Warner Lambert was suspended from the practice of law for one year for violating New Jersey Rule of Professional Conduct 5.6(b) and New Jersey Rule of Professional Conduct 8.4 for attempting to pay off plaintiff s attorney to drop a mass breach of warranty suit over Warner Lambert s Nix Head Lice Shampoo. He was accused of agreeing with the opposing counsel on a deal in which the 90 plaintiffs got $10, and their lawyers got $225, Hiring Plaintiff s Counsel as a Consultant. Notwithstanding the ethical rules and their somewhat harsh interpretation, defendants and counsel have attempted from time to time to circumvent the prohibition of Model Rule 5.6 through various means. For example, a defendant, after suit is settled, may hire a plaintiff s attorney as a consultant on the subject matter of the suit. The resulting conflict of interest between the defendant and future clients of the attorney prevents him or her from taking on subsequent suits dealing with the same issues against the same defendant. It has been argued that the availability of such evasive techniques undermines the arguments in support of Rule 5.6. Opponents of 5.6 stress the value of promoting settlements, zealous representation, and freedom of contract to support the proposition that restrictive agreements should be allowed. However, courts interpreting these arrangements have generally found them to be violative of Rule 5.6. See In Re Conduct of Brandt, 10 P.3d 906 (Or. 2000). 14

15 One possible means of preventing future litigation, at least from a particular plaintiff s lawyer, is for the defendant to hire that plaintiff s lawyer as a consultant once a settlement has been achieved. Unlike the ethical prohibitions that prevent a plaintiff s attorney from entering into an agreement not to take anymore cases against a particular defendant, there is a strong argument that it is not per say prohibited from employing a former plaintiff s attorney as a consultant on the same subject matter for which the attorney previously represented an adverse plaintiff. Ethics rules and the case law do, however, limit the manner in which a consulting relationship may be appropriately negotiated and impose other limitations on the retainer of plaintiff s attorney by the defendant. Courts and commentators have suggested in recent years that consulting agreements are becoming more prevalent. See David A. Dana & Susan P. Koniak, Secret Settlements in Practice Restrictions Aid Lawyer Cartel s & Other Harm, 2003 U. Ill. Rev. 1217, 1223 n. 12. The ethical opinions and decisions which discuss the use of consulting agreements with plaintiff s counsels as a tool focused principally on the timing of the agreement and the disclosures made. As a general rule, defense counsel should refrain from raising the possibility of entering into consulting agreements until after the settlement of plaintiff s claims are completed and all obligations of the parties under the settlement agreement have concluded. Although there is little authority to address the propriety of negotiating such an agreement, the applicable case law and ethical opinions suggest that in order to ethically negotiate a consulting agreement, the following steps should be taken. 1. Negotiations surrounding a consulting agreement should not occur until the settlement has been fully consummated; 2. A determination should be made whether or not consent of former clients is necessary; 3. The amount paid for the consultation must be reasonable and actual services must be provided; and 4. The consulting agreement should not include restrictions on future practice. Other Potential Considerations. In the advent of the internet, a defendant may consider a term of a settlement with plaintiff s counsel requesting that plaintiff s counsel remove any information about the case of the product in question from its website. While there is little case law on this, it appears to center around issues surrounding solicitation. Another possible means of limiting litigation in the future is for defense counsel to request that plaintiff s counsel, as a condition of settlement, agree not to share its work product with other plaintiff s counsel or otherwise limit the use of information received in litigation. While this may typically be addressed in a protective order entered into early in a case, sometimes those issues are not resolved. Where not, by settling with more experienced / talented plaintiff s counsel and limiting the dissemination of work product or use of materials obtained in the litigation, the defendant may be able to limit or curtail future litigation. Thus far, several 15

16 opinions have interpreted this provision. In ABA Ethic Commission on Ethics Professional Responsibility Formal Opinion 417 (2000), the issue focused on the propriety of a provision of the settlement agreement in which plaintiff s counsel was prohibited from using the information learned during the representation of the plaintiff and future litigation against the settling defendant. The committee concluded that such a restriction was a violation of Model Rule 5.6(b). Explained, [a]s a practical matter, however, this proposed limitation effectively would bar the lawyer from future representations because the lawyer s inability to use certain information may materially limit his representation of the future client and further may adversely affect that representation. The Tennessee Board of Professional Responsibility addressed this as well in Formal Opinion 98-F-141. The Board found that such a provision would create an impermissible conflict of interest between the lawyer s current settling clients and other current non-settling clients, and, thus, the plaintiff s lawyer could not enter into the agreement. The first state bar to address the issue was the New Mexico Bar Ethics Advisory Opinions Committee. There, the question presented was whether or not as a condition of settlement, Plaintiff s counsel would be required to turn over their entire file to defense counsel at the conclusion of the case. The Committee found that the attorney could not abide by the client s decision regarding turning over the file to the defendant if the attorney decided that work product that would be turned over would restrict the attorney s ability to represent another plaintiff against the defendant in the future. Conclusion. 16

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