The Case Against Changing the Aggregate Settlement Rule in Mass Tort Lawsuits

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The American legal system has witnessed "a gradual, almost surreptitious, movement toward collective litigation,"1 most recently including so-called "mass tort" litigation.2 Indeed, while mass torts (or "mass accidents," as they were first called3) were initially considered inappropriate for at least some forms of collective treatmentnotably, class actions 4 -"a consensus has now emerged calling for substantial modifications in traditional court processes,"5 including the availability of the class action device.6 Recently, however, the early enthusiasm for the use of class actions in mass tort litigation has waned in the wake of numerous criticisms, primarily directed at the existence of faulty incentive mechanisms for class action lawyers. According to some, these faulty incentive mechanisms have caused lawyers to sacrifice the interests of individual class members in pursuit of enormous legal fees.' This problem is aggravated both by the inability of class members to effectively monitor the lawyer's conduct,. and by difficulties facing courts charged with protecting the interests of absent class members.9 Outcomes aside, commentators have criticized class actions as failing to provide any meaningful opportunity for victims to participate in the resolution of their claims, including the absence of a close working relationship with their lawyers."0

Nevertheless, attracted by economies of scale and other efficiencies of collective action, numerous commentators continue to insist that mass tort lawsuits are here to stay 2 and that the antidote to class action failures is the adoption of various reforms. Among the various reform proposals are those focusing on ethics, rather than procedure." In particular, commentators urge flexibility in the application of ethical rules that appear to limit either the availability or efficacy of aggregate lawsuits, 4 that is, those in which individual lawyers or law firms represent numerous individuals whose claims arise out of the same incident or series of incidents. 5 According to some of these commentators, the aggregation of individual claims, unlike class actions, involve the formation of consensual relationships between tort victims and their lawyers, thereby giving victims the ability to exercise more control than is possible in the class action context.6 While group lawsuits are admittedly far from ideal (so the argument goes), they may still be better than either class actions or individual lawsuits. 7

Aggregate lawsuits, however, are said to face several obstacles in the form of the regulation of lawyer ethics. As Judge Jack Weinstein has observed, The traditional ethical rules.., are inadequate due to their reliance on the single-litigation, single-lawyer model. The mass tort lawyer cannot deal with his or her clients on a one-to-one basis that permits full client participation in the litigation. This diffuse relationship inevitably will yield some level of client dissatisfaction and, because of compromises the attorney must make to formulate strategy for the group as a whole, may result in less-than-zealous advocacy for the positions of particular clients.18

Nevertheless, Judge Weinstein goes on to conclude that trade-offs are required and that "[r]igid adherence to traditional notions about an attorney's duty to his or her client could lead us to refuse to permit representation of large numbers of clients by single attorneys-an undesirable limitation."'" Others agree. In a choice between litigant autonomy and aggregative justice, they argue that aggregative justice should prevail, in part because litigant autonomy is not achievable in any event in mass tort litigation.'

My purpose in this paper is to challenge this view. I do not believe that any widespread reform of traditional lawyer ethics is either necessary or desirable. In my opinion, commentators label too many cases as "mass torts" even though the stated rationale for proposed special exemptions is totally lacking." Moreover, these commentators fail to recognize that the traditional rules are already more flexible than is often suggested and that this flexibility can do much to accommodate the legitimate needs of clients.22 Finally, where existing rules do pose insurmountable obstacles to aggregate representation (including aggregate settlements), I submit that the case has not yet been made that these rules should be changed in order to further facilitate collective action in mass tort litigation.23

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