92 Pages Posted: 7 Sep 2000 Last revised: 25 Jun 2008
Even when related claims are not formally aggregated through any procedural mechanism such as joinder, class action, consolidation, or multidistrict litigation transfer, the lawyers involved in the separate lawsuits often work closely together. They coordinate their efforts to such an extent, in many cases, as to amount to a treatment of the litigation as a single, integrated whole. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship.
The article examines this phenomenon of lawyer coordination in related lawsuits. As an ethical matter, the central question is whether a lawyer, by virtue of coordinated efforts with another lawyer, owes any ethical or fiduciary duties to that other lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, the article suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection to such clients, and the problem is inherent in the nature of informal aggregation. Written cooperation agreements, however, alleviate some of the risks. As a procedural matter, a critical question is whether counsel coordination provides a valid basis for nonparty preclusion. The article considers the "virtual representation" argument that nonparties may be bound by a judgment if the lawyers worked closely together, and concludes that informal aggregation generally cannot justify binding a nonparty with a judgment.
Based on the inadequacy of ethical safeguards and lack of nonparty preclusion, combined with the decline in litigant autonomy that accompanies counsel coordination, the article contends that the rise in informal aggregation suggests the need for more thorough formal mechanisms for aggregating related claims, or at least, greater attention to formalizing counsel coordination through written agreements that make explicit the relationships among lawyers, clients, and lawsuits.
Keywords: informal aggregation, joinder, complex litigation, counsel coordination, virtual representation, nonparty preclusion, joint defense
JEL Classification: K41
Suggested Citation: Suggested Citation
Erichson, Howard M., Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits. Duke Law Journal, Vol. 50, p. 381, 2000. Available at SSRN: https://ssrn.com/abstract=235744
By Keith Hylton
By Yeon-koo Che