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Book Chapter

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D. Rhode




Oxford University Press




Class action abuse is a particularly interesting area in which to explore both when and why law might fail to affect lawyer conduct and the complexity of the lawyer-entity relationship. By class action abuse, we have in mind three related problems: collusive settlements, inadequate representation of class interests, and payoffs to objectors and their counsel. The law condemns collusive settlements and the lawyers who make them.20 It demands that class counsel adequately represent the class.21 Paying objectors and their counsel to drop their challenges to class settlements is, at best, legally questionable behavior and, at worst, evidence of collusion and inadequate representation. 22 If, as we contend, these practices have become commonplace, the law has proved a poor regulator of lawyer conduct. Why?

As to the complexity of the lawyer-entity relationship, class-clients differ significantly from partnership-clients and corporation-clients, to name just a few of the possible varieties of entity-clients. For example, class counsel plays an important, and sometimes exclusive, role in selecting and controlling the class representatives and shaping the size and purpose of the enterprise. 23 By contrast, lawyers representing other entities typically do not select or control the managing agents, nor do they define the nature of the firm. Other entities typically have chains of command, and they have agents authorized to hire and monitor the entity's lawyers; 24 classes typically have neither.25 With respect to the scope of the lawyer's representation, the law generally presumes that corporate counsel represents the corporation and not its officers,26 but class counsel necessarily represents both the class and its named representatives.

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