Lawyer Ethics on the Lunar Landscape of Asbestos Litigation

Abstract

The Rand study, to be followed by further analysis and detailed consideration of policy choices, provides a neutral and relatively objective factual basis on which to assess these charges. My conclusion is that asbestos litigation provides a good example of how the good intentions of judges can go awry because they fail to take account of the likely consequences of their actions on the behavior of self-interested participants, including their own preoccupation with clearing dockets. The asbestos swamp also illustrates the failure of Congress to provide a public interest solution to a problem that may be incapable of being resolved satisfactorily, consistent with the Constitution and the rule of law, by activist judges working with self-interested plaintiff lawyers and defendant companies.

My assignment, however, is not these broad policy questions but whether or not the current handling of asbestos cases violates the disciplinary rules of the legal profession. First, have the plaintiff lawyers violated ethics rules through the mass screening techniques that produce the thousands of unimpaired claimants whose recoveries have bankrupted the culpable defendants and now threaten many other companies whose culpability is limited or nonexistent? Second, in presenting the claims of these asbestos claimants, do plaintiff lawyers improperly coach the testimony of claimants, especially with respect to causation issues (exposure to asbestos products related to a particular defendant) or offer expert testimony they know or should know is false? Third, do these lawyers, who often are representing hundreds or even thousands of claimants against the same defendants, violate the duty of communication with clients, the client's control over settlement, and the profession's aggregate settlement rule? Fourth, in negotiating for these large and amorphous groups of claimants, containing many unimpaired claimants and a smaller number of seriously injured asbestosis and mesothelioma victims, are the conflict of interest rules being violated? Finally, are the fees the plaintiff lawyers garner from settlement awards excessive and unreasonable?

My conclusions are bound to be a disappointment to anyone who hopes for confident and unambiguous judgments. There is insufficient evidence concerning nearly all of the issues listed above to reach a confident conclusion that ethics rules have been violated. The two exceptions involve the aggregate settlement rule13 and the presence of pervasive conflicts of interest. But no one seems to care about any of these issues except for a few academic writers. Defendants and their counsel, who demand broad settlements and want but cannot get global peace after Amchem Products v. Windsor 14 and Ortiz v. Fibreboard Corp.,1 cannot and do not complain about these ethical violations. Individual clients, who could raise the issues, have neither the time nor the resources to pursue these issues. State and federal judges who handle asbestos cases appear to be totally uninterested in adding professional responsibility concerns or hearings to the already overwhelming task of clearing dockets of pending asbestos cases. Finally, state disciplinary bodies will not address them on their own initiative and appear totally disinterested in launching major investigations in the few instances in which grievances have been filed.16 Like the manufacture of sausage, asbestos litigation is a messy endeavor, and no one really wants to know how the ingredients are put together.