Achieving Procedural Goals Through Indirection: The Use of Ethics Doctrine to Justify Contingency Fee Caps in MDL Aggregate Settlements by Morris Ratner :: SSRN

Achieving Procedural Goals Through Indirection: The Use of Ethics Doctrine to Justify Contingency Fee Caps in MDL Aggregate Settlements by Morris Ratner :: SSRN:
Abstract

Recent non-class aggregate settlements of personal injury mass torts reached in multidistrict litigation (MDL) proceedings – including Vioxx, Guidant and Zyprexa - show that practice has outpaced the development of doctrine. Forced to improvise, trial courts have sought a firm foundation for exercising authority over these private, contractual settlements, specifically to justify and guide court control over attorneys’ fees. By imposing across-the-board limits on contingency fees recoverable by individually-retained counsel, the MDL trial courts have effectively re-written fee contracts between lawyers and clients in thousands of cases. The trial courts grounded the fee cap orders in their “inherent authority” to regulate members of the bar to enforce ethics rules. But these fee-capping decisions stray dramatically from the ethics doctrine that purportedly informs them, in the service of procedural goals (i.e., making room for enhanced attorneys’ fee payments to court-appointed common benefit counsel who achieved global settlements). Unresolved tension within the MDL governance regime partly explains this boundary-pushing reliance on ethics, one that potentially delays the development of clear answers to difficult procedural questions about the nature of MDL aggregation, and, relatedly, about the proper use of the attorneys’ fee lever as an MDL case management tool.

h/t John Steele/Legal Ethics Forum

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