In the General Motors Ignition Switch Litigation, MDL No. 2543, a motion was made to remove Lead Counsel based on a confidential “inventory settlement” of Lead Counsel’s cases, and alleged improprieties regarding the selection (and alleged de-selection) of potential “bellwether” trial cases (in which Lead Counsel allegedly demanded a personal share of the fee). While the Court’s Order, denying the motion, is extremely fact- and case-specific, the dueling affidavits submitted by noted complex litigation and legal ethics experts, Charles Silver and Geoffrey Miller, present contrasting positions on the extent to which an attorney appointed by the Court to perform common benefit work owes a fiduciary or other duties to plaintiffs in the litigation which have not formally retained the attorney as their individual counsel.
(This general issue is explored, to some extent, in Ethical Questions Raised by the BP Oil Spill Litigation.)
Professor Miller, retained (perhaps of some note) by GM, focused on the undivided loyalty that Lead Counsel owes to his or her own clients, while somewhat side-stepping the issue of what specific duties, if any, are owed to other plaintiffs in the litigation. Professor Miller argues that, in an aggregate case, as opposed to a formally certified class action, each plaintiff is individually represented by his or her own attorney, and argues that the ALI’s Principles of the Law of Aggregate Litigation relied upon by the moving attorney (a) do not purport to restate existing law, but rather, are recommendations to legislative bodies, rulemaking committees, etc; (b) do not actually express the opinion of the Institute’s members, as the quote is taken from the Reporter’s Notes, and therefore only represents the opinion of the reporter; and (c) is not inconsistent with the notion that attorneys performing common benefit work should act fairly, efficiently and economically in the interests of all plaintiffs. “The comment nowhere advances the more controversial – and legally unsupported – proposition … that an attorney’s obligation to his or her individual client should be materially limited by obligations allegedly owed to other attorneys and their clients.”
Professor Silver, on the other hand, opines that: “Nothing prevents an attorney who holds a lead position in an aggregate proceeding from negotiating a side-settlement of an inventory of signed cases. The attorney need only recognize the conflict and resign the lead position. By resigning, the lawyer preserves good incentives by eliminating the possibility that the unrepresented claimants will be treated like sacrificial lambs.”