Doing Good, Doing Well

Abstract

Positioned at the intersection of big-money practice and social change litigation, mass torts provide a useful study in multiple motivations. While financial incentives for plaintiffs' lawyers explain much of what happens in mass torts, policy objectives come into play as well, yielding a more complete picture of what drives the litigation. Despite the difficulty disentangling reasons from rhetoric and rationalization, it is worth exploring the significance of mixed motives for lawyers who are committed to social change objectives in litigation.

The combination of monetary and policy goals arguably creates a lawyer-client conflict of interest. The argument is that the lawyers should not pursue their own policy agenda at the expense of maximizing clients' interests. In the mass collective representation that typifies modern mass tort litigation, however, the danger of lawyer-client conflicts is even greater if the lawyer is fully devoted either to particular policy objectives or to the pursuit of wealth than if the lawyer is motivated by multiple considerations. Mixed motives more accurately reflect the combination of interests represented by a large group of similarly situated individual clients. Thus, mixed motives tend to mitigate rather than exacerbate the conflicts of interest that inhere in mass collective representation.

The mix of financial incentives and policy objectives invites a rethinking of the prevailing conception of public interest lawyering. It is misleading to divide lawyers into those who pursue the good and those who pursue wealth. The line is not so neat, and it is important not to oversimplify the motivations of lawyers who seek simultaneously to make money and to accomplish socially valuable objectives. The terminology of law practice reinforces a binary view of money-making and public interest work. Lawyers and law students equate "public interest work" with low-paying law jobs, and use the phrase "for the public good" (pro bono publico) to refer to law services without fee. The prevailing definitions of these terms are based on market-undervaluation, which makes sense for purposes of determining subsidies such as loan forgiveness programs and the ethical duty to engage in pro bono representation. But defining public interest work in terms of undercompensation may have an unintended consequence in its effect on the attitudes of lawyers whose work does not fall within the narrow definition. If public interest lawyering is what lawyers do for little or no pay, does that imply that most lawyers should pursue wealth and raw client interest without regard to whether their work serves the public good? Whether a redefinition of public interest lawyering would contribute to lawyers' overall commitment to the public good, however, depends on several factors, including the strength of the self-serving bias that renders lawyers likely to overvalue the social good achieved by their own practice.

Keywords: mass tort, plaintiffs' lawyers, public interest, pro bono

JEL Classification: K40, K41