Lynn Baker, ‘Mass Torts and the Pursuit of Ethical Finality’

Abstract:
Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through non-class aggregate settlements without running afoul of the existing ethics rules. This Article joins this important debate.

Part I explains the special allure and complexity of finality in non-class aggregate settlements for defendants, plaintiffs, and plaintiffs’ counsel. Part II sets out five core components of comprehensive finality commonly sought in these settlements. These core components include (1) minimum participation thresholds and affirmations by plaintiffs’ counsel that they (2) will cease advertising for new clients with similar claims against the defendant; (3) will not represent any new, similar claimants; (4) will recommend participation in the settlement to all clients; and (5) will (seek judicial permission to) withdraw from representing any client who declines his or her settlement offer. This Part also discusses the limitations that the Rules of Professional Responsibility currently impose on each component and the extent to which comprehensive finality is currently achievable as a practical matter. It also provides a critical analysis of critiques of the ethics and desirability of each component recently offered by various scholars.

Part III argues, notwithstanding these critiques, that comprehensive finality in non-class aggregate settlements is both desirable and largely achievable within existing ethical constraints. This Article concludes by proposing an amendment to ABA Model Rule of Professional Responsibility 5.6 that would relax the major problematic constraint and thereby arguably benefit defendants, plaintiffs, and plaintiffs’ counsel involved in such settlements.

Baker, Lynn A, Mass Torts and the Pursuit of Ethical Finality. 85 Fordham Law Review 1943 (2017).

First posted 2017-05-13 09:25:18

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