Beyond the Class Action: Lawyer Loyalty and Client Autonomy in Non-Class Collective Representation

Abstract

Class actions receive the lion's share of academic and policymaking attention, but in practice much mass litigation proceeds on a non-class basis. Non-class mass litigation often resembles class actions in the following sense: numerous plaintiffs depend upon the work of counsel with whom they have no meaningful individual lawyer-client relationship, over whom they have no meaningful control, and whose loyalty is directed primarily to the interests of the group as a whole. Class actions retain the distinction of binding nonparties, but in the relationship between counsel and the represented group, non-class litigation resembles class actions to a much greater extent than generally recognized. Given the attention that class actions have received, it makes sense to look to certain class action concepts and developments to inform our understanding of non-class collective representation. The central feature of class actions mirrored in non-class collective representation is the lack of client autonomy. Group lawyers seek to advance collective interests, and clients exercise little control over the course of litigation or negotiation. For many plaintiffs, giving up autonomy is a rational choice. Collective representation - whether by class action, mass representation by a single firm, or mass representation by a cooperating group of lawyers - offers significant advantages over individual litigation. Nonetheless, some plaintiffs may prefer individual representation, either based on a position in which individual representation may maximize recovery, or based on personal preference for autonomy, non-monetary remedies, or other objectives. The question is how to strike the right balance between individual autonomy and the benefits of collective representation. Class actions attempt to strike that balance by giving class members notice and the right to opt out, and recent developments have enhanced the meaningfulness of opt-out rights, including opportunities to exit class actions with knowledge of the settlement terms. These developments in class actions suggest that plaintiffs can receive the key benefits of collective representation while retaining autonomy at the two most critical moments: the outset of collective representation, and the acceptance of a settlement. A similar approach in non-class collective representation can protect the core of client autonomy while maintaining the lawyer's commitment to group interests. Pursuant to the law of professional responsibility, sensibly applied in the mass litigation context, lawyers should represent clients collectively in mass litigation only if clients give their informed consent to the conflicts of interest that inhere in such collective representation. With informed consent to the inherent conflicts, non-class collective representation resembles an opt-out or opt-in class action on adequate notice. Similarly, an aggregate settlement reached by non-class collective representation should not bind any client without that client's informed consent. Non-class aggregate settlements, to this extent, should resemble opt-out settlement class actions or litigation class settlements with a second opt-out opportunity. With informed consent at the outset, and with the added protection of the aggregate settlement rule, the consent process in non-class collective representation should preserve the core of client autonomy, despite the relinquishment of most client control over the conduct of litigation and negotiation.