Duties Owed by Appointed Counsel to MDL Litigants Whom They Do Not Formally Represent

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouseLeave a Comment

Stemming from my experience in the BP Oil Spill Litigation, I started to think about the specific duties owed by Lead Counsel to other litigants in an MDL whom they do not formally represent. Which questions, among others, were raised in a series of speeches and papers that have evolved over time, Ethical Questions Raised by the BP Oil Spill Litigation. More recently, I have been appointed to a Louisiana Supreme Court Committee that is in the process of studying whether, and if so what, different or additional Professional Rules might be applied in class, consolidated, or other complex cases. And last October, I was asked to speak on a panel regarding the duties of Lead Counsel at the MDL Duke Conference. The specific question of whether Lead Counsel owe a “fiduciary duty” to non-represented MDL plaintiffs was brought to the fore in the recent GM Ingnition Switch Litigation, and has also been raised by some of the attorney objectors in the Chinese Drywall Litigation. Therefore, looking to the common law, the Rules of Professional Conduct, class action jurisprudence, and other analogous frameworks such as ERISA, I started to put together a paper intended to explore the duties, if any, owed by appointed counsel in leadership positions to their own clients, to other plaintiffs, and/or to the privately retained counsel who might be representing other plaintiffs in the litigation. A working draft follows:

Duties Owed by Appointed Counsel to MDL Litigants Whom They Do Not Formally Represent (June 1, 2017)

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