The past few years have witnessed a sharp increase in the use of the aggregate settlement as the go-to device for globally resolving mass tort claims. However, as with most new devices, the excitement over the novelty can sometimes outpace ethical considerations. En route to an aggregate settlement, plaintiffs and defendants are free to negotiate a resolution without judicial supervision. Attorneys beware; this route may lead to catastrophe for those not apprised of the ethical implications that arise during all phases of settling in the aggregate.
Ethics During Negotiation
The primary goal of a corporate defendant faced with a multitude of claims against them is global resolution. One method defendants use to pave the way toward this goal during negotiations is to require that plaintiffs counsel agree to forgo further litigation against the corporation. Forbearance is secured through the use of an engagement agreement, which makes the corporation the plaintiffs attorney’s new “client.” Rule 1.7 of the Model Rules of Professional Conduct (MRPC) then prohibits representation due to the concurrent conflict of interest.
