Achieving Procedural Goals Through Indirection: The Use of Ethics Doctrine to Justify Contingency Fee Caps in MDL Aggregate Settlements

Abstract:     
Non-class aggregate settlement practices have out-paced the development of legal doctrine in multidistrict litigations (MDLs). Forced to improvise, trial courts have sought a firm foundation for exercising authority over these private, contractual settlements, specifically to justify and guide court control over attorneys’ fees. By imposing across-the-board limits on contingency fees recoverable by individually-retained counsel, MDL trial courts have effectively re-written fee contracts between lawyers and clients in tens of thousands of cases. The trial courts in three recent proceedings – Vioxx, Guidant, and Zyprexa - grounded the fee cap orders in their “inherent authority” to regulate members of the bar to enforce ethics rules. But the fee-capping decisions in these cases stray dramatically from the ethics doctrine that purportedly informs them. This boundary-pushing reliance on ethics serves procedural goals, i.e., making room for enhanced attorneys’ fees to court-appointed common benefit counsel who achieved global settlements. Unresolved tension within the MDL governance regime regarding the extent to which MDL aggregation converts individual litigation to group litigation partly explains this misuse of ethics doctrine, one which potentially delays the development of clear answers to difficult questions about MDL aggregation procedures and specifically about the proper use of the attorneys’ fee lever as an MDL case management tool. Those questions can and should be answered by Congress or by trial court judges directly as procedural questions, rather than indirectly as ethics questions.

Number of Pages in PDF File: 36

Keywords: Aggregate Settlements, Multidistrict Litigation, MDL, Contingency Fees, Ethics

Accepted Paper Series