Academic journal article The Review of Litigation

Dealing with Conflicts in Joint Representation of Defendants in Mass Tort Litigation

Academic journal article The Review of Litigation

Dealing with Conflicts in Joint Representation of Defendants in Mass Tort Litigation

Article excerpt

G. Luke Ashley and Richard L. Wynne, Jr.*

I. Introduction

As litigation becomes increasingly complex, with plaintiffs attempting to unite in class action lawsuits while naming as many defendants as possible, the legal costs associated with defending such lawsuits present a great economic challenge to many companies 1 In response to the increasing costs, defendants have banded together by engaging a single attorney or law firm to provide joint representation. Alternatively, in certain contexts, defendants have formed joint defense groups in which each defendant has an individual attorney, but costs as well as information are shared by members of the group.2 Although both approaches appear functional and prudent, significant problems may arise that require the attorney or law firm to withdraw from representation of one or all of the defendants in the multiple representation context or that may implicate disqualification of an attorney in a joint defense group.

This Article addresses a number of ethical concerns that an attorney must consider before undertaking a joint defense in mass tort litigation. Of paramount importance is the strong possibility that conflicts of interest may develop between defendants, even if their interests appear to be aligned at the beginning of the joint representation. In cases of multiple representation, attorneys likely would prefer to continue representation of at least one defendant even if forced to withdraw from representation of another because of conflicts of interest. When determining whether to continue representation of one defendant, however, the attorney must consider the handling of confidential information provided by the individual defendants. The attorney's ethical obligations regarding such information may lead to the attorney's inability to represent any of the defendants in light of the Texas Supreme Court's recent ruling in National Medical Enterprises v. Godbey.3

Before undertaking a joint defense, an attorney must foresee all of the potential ethical concerns associated with the representation and take precautions to ensure that any conflicts that arise will not work to prejudice clients or subject the attorney to disciplinary action. This Article describes an approach, based upon informed consent of all parties, for handling the ethical concerns of the joint defense group or multiple representation. By performing a number of prudential steps before beginning a joint representation, an attorney may avoid a number of problems that may arise later. This Article suggests, however, that the Texas courts have improperly construed the attorney ethics rules to eliminate the ability of a client or former client to consent prospectively to an adverse representation in the event that conflicts arise between the parties.

II. Benefits of Joint Defense Group or Common Representation Initially, most defendants do not consider multiple representation. But as they examine the cost implications of defending the lawsuit, they begin to identify ways to reduce their cost burden. Engaging a law firm representing another defendant is naturally a way to reduce legal expenses. In addition, the client may enter into a multiple representation arrangement in order to be represented by a particular firm if that firm has already undertaken representation of a codefendant.

Regardless of the clients' objectives in agreeing to joint representation or participation in a joint defense group, each client should benefit from cost savings due to the representation.4 In the mass tort context, the legal costs of defending every lawsuit may be staggering.5 Accordingly, defendants increasingly have united to reduce defense costs.

Common representation of defendants provides benefits in various types of mass tort litigation. Lawsuits related to alleged environmental contamination, especially actions brought under the Comprehensive Environmental Response, Compensation, and Liability Act6 ("CERCLA" or "Superfund") lend themselves to multiple representation. …

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