There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of the Law of Aggregate Litigation, either in the blackletter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule, i.e., Rule 1.8(g) of the Model Rules of Professional Conduct, although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this Essay is not to discuss the controversial aggregate settlement proposal (which the author has opposed elsewhere), but rather to examine other parts of the Principles and to comment on the implications of the dearth of any meaningful discussion of ethics rules that apply to lawyers involved in various types of aggregate litigation, including class actions and nonclass aggregations. One implication is that the ALI has missed an opportunity both to remind lawyers of their ethical obligations in these types of proceedings and to propose solutions to some of the ethical issues that courts have yet to resolve. There may, however, be an even greater significance to the absence of any significant discussion of legal ethics. In the class action context, for example, the Principles appear to have inadvertently taken an unexplained position on the controversial question of client identification for class counsel. More important, the use of the unfortunate term “structural conflict of interest” may seriously undermine the attempt to clarify judicial determinations of the adequacy of legal representation. With respect to nonclass aggregations, this Essay argues that the Principles’ failure to address ethics rules governing communication and conflicts of interest (i.e., outside the context of aggregate settlements) makes it likely that mass tort lawyers will continue to treat their clients as if they were absent members of a class, but without the protections afforded a class.
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