Layers of Lawyers: Parsing the Complexities of Claimant Representation in Mass Tort MDLs

The individual plaintiff in an MDL is subject to the efforts and decisions of numerous different attorneys, including many whom the plaintiff did not choose but who stand to share in any fees resulting from the plaintiff’s case. Which lawyers effectively represent the MDL plaintiff, at what point(s) in time, for what purpose(s), and with what obligations and potential liability to that plaintiff? What obligations and potential liability do the MDL leadership attorneys have to their own individually retained clients and other litigants in the MDL, and how should these attorneys handle any perceived conflicts in their obligations to the two groups? These important questions have thus far received little systematic attention from courts or scholars but are increasingly the focus of litigation.

This Article begins to fill the scholarly void. It explores the guidance provided by existing caselaw, state bar ethics opinions, and state rules of professional responsibility regarding the default obligations and liabilities that attend the receipt of client fees by these different overlapping “layers” of plaintiffs’ lawyers and any limitations which may be imposed on them by contract or court order. It then extrapolates from this limited guidance to analyze two contexts of special, recurring importance in mass tort MDLs: (1) the disclosure and consent obligations of lawyers who both “represent” two or more clients covered by, and “participate in making,” an “aggregate settlement” and (2) conflicts that may arise when a court-appointed leadership attorney negotiates an “inventory” settlement involving only clients who individually retained her. The Article concludes by suggesting some best practices that future MDL courts and their appointed plaintiffs’ leadership attorneys might employ.