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Ethics by Appointment: An Empirical Account of Obscured Sanctioning in MDL Cases
No full textEthical norms in litigation are policed through overlapping regulatory regimes. One of these regimes is internal to litigation and split into different components, including Federal Rules of Civil Procedure 11, 26(g), and 37; Federal Rule of Appellate Procedure 38; 28 U.S.C. §§ 1927 and 1447(c); as well as courts’ inherent authority to sanction litigants and attorneys. In the standard narrative, these tools provide immediate corrections to unethical conduct, unlike bar sanctions or derivative malpractice actions that are delayed and uncertain. Together, these tools aim to effectuate the goal of Federal Rule of Civil Procedure 1: to make sure parties cooperate “to secure the just, speedy, and inexpensive determination of every action and proceeding.” This Essay assesses the extent to which these litigation sanction devices work in “every action,” or whether multidistrict litigation (“MDL”) cases are also idiosyncratic in this respect.
Using docket sheets from numerous MDL cases, I examine how often and with what result internal sanctions are used in MDL cases. The findings show low usage rates and low success rates (compared to 10,000 non-MDL cases filed during the same time window). This suggests that courts in MDL cases have replaced the policing function of formal sanctioning devices with other devices, most prominently the power to select, empower, and replace lead counsel
The Ethics Gap: MDL Leadership Versus the Attorney-Client Relationship
No full textMass torts cases take up a massive swath of the nation’s federal court docket yet are governed by little to no substantive procedural laws. Instead, a host of regular practices for multidistrict litigation (“MDL”) management have emerged through repetition. One such practice is the selection of a plaintiff steering committee (“PSC”): a small group of experienced plaintiffs’ attorneys that control and direct the litigation from initiation through settlement or other resolution. The PSC is extremely important—determining which experts to use, which injuries to focus on, and so forth. Yet there are no set rules dictating PSC management of the litigation, unlike those that control class action counsel selection and court approval. There are no specific ethical duties owed by any PSC member to any individual plaintiff in the litigation other than to a PSC member’s own clients, if they have any. An average non-bellwether MDL plaintiff benefits from the PSC’s work and will probably pay in part for it but has no true fiduciary relationship with the PSC. The PSC manages the individual’s case, but there is no attorney-client relationship between them. The relationship seems contractual, but neither plaintiff nor PSC has entered into that specific contract, and neither can meaningfully terminate that contract. From the legal ethics perspective, is this sufficient? Should rules be developed, or should existing rules be applied to this kind of relationship? This Essay exposes and explores this ethical gap in MDL practice
