Mass Tort Settlements Strain Lawyer’s Duty of Loyalty
Posted Jan 23, 2008 6:30 PM CDT
By Martha Neil
As recent controversy over a proposed $4.85 billion settlement of Vioxx painkiller litigation shows, traditional rules of legal ethics do not fully accord with the way mass tort cases are handled in the modern world.
Faced with a choice between encouraging enough clients to join in the settlement—which requires 85 percent plaintiff participation to earn guaranteed attorney fees—or focusing on the varying concerns of individual clients in factually differing cases, plaintiffs attorneys may be tempted to put their own interests first, writes New York Times columnist Adam Liptak.
And a number of law professors, he notes, seem to think this trend poses no significant problem. “Speaking of individualized notions of lawyer loyalty is sort of like the mindset of the French military in 1940,” says Richard Nagareda. “The French generals hunkered down in a series of reinforced bunkers along the German border called the Maginot Line. Meanwhile, the new world of warfare literally blitzed right past them.” Nagareda is a law professor at Vanderbilt University and author of the book Mass Torts in a World of Settlement.
However, traditional rules of legal ethics are based on sound policy, and should not be abandoned simply because litigation is now handled differently than it was decades ago, Liptak contends.
"If mass injury settlements require different rules of legal ethics, the states can change those rules," he writes. "And if clients in mass injury cases are hiring lawyers who will not put their interests first, they should be told that up front and not as their lawyers are salivating over the payday of a lifetime."
As discussed in a recent ABAJournal.com post, the judge in the Vioxx case has said recent amendments to the proposed settlement have resolved any ethics issue it might previously have posed concerning legal advice to clients.