Aggregate Settlements and Attorney Liability: The Evolving Landscape

35 Pages Posted: 20 Feb 2016 Last revised: 9 Dec 2016

Lynn A. Baker

University of Texas School of Law

Date Written: February 18, 2016

Abstract

This Article was prepared for the Hofstra Law Review conference on "Lawyers as Targets: Suing, Prosecuting, and Defending Lawyers."

Over the past several decades, attorneys involved in mass tort settlements, especially those representing the plaintiffs, have faced an increasing number of large-dollar liability claims centered on the aggregate settlement rule: that is, the state equivalents to Rule 1.8(g) of the ABA Model Rules of Professional Conduct. During this period, courts have held that fee forfeiture, potentially totaling millions of dollars, is an appropriate remedy for violations of the Rule, even in the absence of any demonstrated economic harm to the client. At the same time, courts and other authoritative bodies have expressed a variety of often conflicting views regarding the obligations that the Rule imposes on attorneys and when the Rule applies, resulting in much uncertainty and little guidance for attorneys.

This Article offers both positive and normative clarification. It provides a thick description of the current interpretations of the aggregate settlement rule in order to identify the specific areas of disagreement among authorities. It goes on to offer a normative theory of the Rule and its purpose, which could usefully mitigate the current interpretive confusion regarding which settlements are "aggregate settlements" and what client disclosures are mandated by the Rule.

Keywords: legal ethics, professional responsibility, mass torts, fiduciary duty, aggregate settlement, attorney liability, malpractice

JEL Classification: K13, K23, K30, K41

Suggested Citation

Baker, Lynn A., Aggregate Settlements and Attorney Liability: The Evolving Landscape (February 18, 2016). 44 Hofstra Law Review 291 (2016); U of Texas Law, Law and Economic Research Paper No. 564. Available at SSRN: https://ssrn.com/abstract=2734161 or http://dx.doi.org/10.2139/ssrn.2734161

Lynn A. Baker (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1325 (Phone)
512-232-6011 (Fax)

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