No fooling with the rules in class actions

By Diane Karpman

Karpman

After the Vioxx case, class action lawyers were called terrorists on Steve Forbes’ Saturday morning television show. In today’s environment, that is as inflammatory as labeling someone a liberal. When class actions are vilified by the administration and have become targets of Congress, it is hard to remember that class actions are the “poor man’s” key to the courthouse.

Class actions desegregated schools, provided students with books and recently forced hesitant school districts to provide advanced placement programs for all neighborhoods. Think about it. Do you really believe that a group of prisoners is an attractive client base? Representative actions are so controversial that even the American Law Institute is hesitant to label their current project, The Principles of Aggregate Litigation, as a “Restatement of the Law” of class actions.

The traditional litigation paradigm is drastically changed in class actions because everyone has enhanced duties. The court becomes a fiduciary for the absent class members and is required to aggressively monitor the conduct of counsel. To fulfill that role, courts expect that lawyers will exhibit greater candor and competency. And, although litigators speak of “trial,” let’s be real; the overwhelming majority of these cases settle.

The proverbial ethics conundrum regarding “who is the client” assumes new shapes in class actions. Clearly, lead plaintiffs assume client status, but what about others from whom you may receive confidential information? If client identity is murky, then who consents to the inevitable conflicts that are expected to occur? Lawyers, law firms, their friends and family cannot be lead plaintiffs because that destroys the essential antagonism that must exist for the just resolution of the case. Apple Computer Inc. v. Superior Court (Cagney) (2005) 126 Cal. App. 4th 1253.

“Clienthood” is the primary trigger for most of our rules. It determines the existence of confidentiality, loyalty and when impermissible contact occurs. But just who is the client, post-certification but before expiration of the opt-out period in employment cases? Many recognize that class actions are entrepreneurial litigation and speculate that a true “client” is unnecessary.

The rules regarding advertising and solicitation become mysterious because class counsel has a duty to increase the class, and yet must be cautious not to cross over the line, if one exists. A recent case recognized that lawyers can troll the internet for class members. Barton v. U.S. Dist. Court for Central Dist. of Cal. (9th Cir. 2005) No. 05071086, D.C. No. CV-01-07937-MRP.

The level of competency is amplified for lead counsel, since the rules state the bare minimum level required. Much more is expected in “beauty contests” for lead counsel. Incompetent performance can lead to claims of malpractice, which can be so enormous that carriers are hesitant to insure class action lawyers. One of the issues that worries carriers is the statute of limitations. Does it exist? When your clients might be Holocaust victims or Japanese prisoners of war, then time, in accordance with Einstein’s theory, really does become relative.

• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com.