Aggregate Settlements and Attorney Liability: The Evolving Landscape
35 Pages Posted: 20 Feb 2016 Last revised: 9 Dec 2016
Date Written: February 18, 2016
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: Suggested Citation