Ethics Matters, Too: The Significance of Professional Regulation of Attorney Fees and Costs in Mass Tort Litigation - A Response to Judith Resnik

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University of Pennsylvania Law Review




Professor Resnik begins her paper, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, by noting what she regards as the obvious insufficiency of current law regarding the payment of attorney fees and costs in mass tort lawsuits.' According to Professor Resnik, there is a "shared sense that 'something' needs to be done,"2 but there is no consensus on what that "something" is.3 Professor Resnik's solution appears to be increased regulation by judges,4 including heightened attention to the relationships among differently situated lawyers; for example, lawyers who are class counsel or members of a plaintiffs' steering committee and lawyers who represent individual clients.5

I teach and write in the area of lawyer ethics, not civil procedure or mass torts. As an ethicist who is not as familiar as others with what is happening in the world of mass torts, I hope I will be forgiven if I have not fully understood the nature and extent of the problem that Professor Resnik is attempting to solve.6 I have been much informed by Professor Resnik's paper, as well as by her earlier work, including several collaborative efforts that describe, in rich detail, what she refers to as the elaborate "layers of lawyers" who perform various roles in these lawsuits

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