Title: The 1998 Mass Tort Symposium: Legal Ethical Issues at the Cutting Edge of Substantive and Procedural Law
Abstract: David Hricik* The Symposium held in early February 1998, sponsored by The Review of Litigation at the University of Texas School of Law, brought together legal ethicists, mass tort plaintiffs' lawyers, members of the defense bar, and interested academicians and students. The Symposium participants raised and addressed many of the ethical issues that accompany mass tort litigation. The consensus appeared to be that the application of existing ethical rules to resolve the ethical issues arising under the unique circumstances that accompany mass tort litigation at best results in incomplete and unsatisfactory solutions, and at worst creates actual barriers to substantive justice. Neither the lawyers nor the academicians were entirely at ease in applying the ethical rules to the complex relationships that define mass actions, since those rules were written without considering the mass action paradigm. Virtually no mass tort cases were brought until after the Model Rules of Professional Conduct were published in 1983, and none had been filed prior to the publication of the Model Code in 1969.(1) That the ethical rules were not written with mass torts in mind was demonstrated by the repeated observations by Symposium participants that the utility served by various legal ethical rules was often diminished if strictly applied in the mass tort context. Some observed that strict application of the ethical rules could in fact harm the very interests the rules ostensibly were drafted to protect. For example, the duty of a lawyer to communicate with a client, particularly concerning settlement, was a topic of considerable discussion. Ethical rules require lawyers to obtain the client's express authority to accept settlement for the particular client's claim. To settle a group of plaintiffs' claims without such individual authority can constitute a prohibited settlement. 2 In a case involving the usual one-attorney-one-client relationship, any limitation on the client's authority to accept or deny settlement is likely to be held unethical.3 Such prohibitions obviously protect legitimate interests and expectations and also further important policies, and thus should be subject to few exceptions in the typical lawyer-client relationship. Should that prohibition and the requirement of full consultation and communication, however, be strictly applied in the mass tort context, whether the issue is merely to keep the client informed or with respect to the more specific duty to obtain client consent to aggregate settlements? To support a less stringent application of existing rules, Ms. Sofia Adrogue offered as an example her recent representation of tens of thousands of plaintiffs located in developing countries around the world, many of whom had no modern means of communication nor the ability to speak English; some, perhaps, could not even read or write.4 Under these circumstances, she stated, the logistics and economics underlying many mass tort cases simply do not allow for the individual consultation otherwise required by the ethical rules.5 No doubt, rules which were designed to protect the various interests arising when one lawyer represents one client should be applied beyond that context only after careful consideration, since strict application might frustrate the very policies such rules were intended to further, as one Symposium speaker emphasized.6 The ethical rules regarding conflicts of interest are also implicated when considering the proscriptions against aggregate settlement of joint clients' claims. The Symposium participants noted that often class members or individual plaintiffs compete against one another for shares of a limited pool of money: the more one sub-class or individual gets, the less the others receive.7 Moreover, plaintiffs' counsel often represent clients who are presently injured as well as those who, as yet, have no symptoms but nonetheless someday may become ill. …
Publication Year: 1998
Publication Date: 1998-07-01
Language: en
Type: article
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