Merging Roles: Mass Tort Lawyers as Agents and Trustees

Abstract

This article will argue that mass tort lawyers occupy two roles with differing and somewhat conflicting responsibilities. Sometimes, they are agents who must benefit their clients and operate subject to their clients' control. Other times, they are trustees and must figure out what is reasonable for their charges. The latter assignment entails a degree of paternalism and a degree of freedom to act disloyally, both of which are foreign to agency. Subjecting mass tort lawyers to agency rules exclusively obscures and distorts the latter role, which lawyers must play if group representations are to succeed.

Forcing square pegs into round holes also creates an intolerable situation in which a lawyer who merely wishes to do what is right when settling a mass tort representation can find no clear path under the rules. I often receive requests for assistance from lawyers who, being on the brink of negotiating or having already negotiated enormous settlements, see the process of finalizing deals as an ethical minefield. This is not as it should be. The default rules of agency and professional responsibility should create clear signposts that lawyers can follow when settling multiple-client representations and that, if followed, insulate lawyers from liability.

This article will argue for a richer normative account of mass tort lawyering in the following way. Part II will show that the project of maximizing claim values can be rife with conflicts. Because this project is usually thought to be a harmonious one that agency law and state bar rules permit lawyers to undertake, one must conclude that these bodies of law have considerable tolerance for conflicts built in. Part III will focus on the project of allocating recoveries. It will argue that although this project entails unavoidable conflicts, plaintiffs' lawyers make valuable contributions to it, akin to the contributions trustees make by allocating assets among beneficiaries impartially and reasonably. In practical effect, the point of requiring conflict waivers is to allow lawyers to act as trustees when designing allocation plans. Finally, Part IV will argue that misplaced attachment to agency and state bar rules prevents clients from regulating mass tort representations in ways that further their interests. Default rules of agency and ethics are supposed to help clients, not harm them. Clients should therefore be free to deviate from these rules when they want. In particular, they should be free to create fiduciary relationships that cast lawyers in hybrid roles that allow lawyers to make inter-client trade offs.