Modeling Class Counsel

The class suit has become an established and increasingly prominent institution of our procedural system. Our system of law enforcement through private litigation, including class suits and other aggregative civil procedures, is virtually unique throughout the world and is an integral element of the American governance system. A key institution in class suit procedure is the role of plaintiffs counsel, but a clear concept of the role of class counsel, and counsel's relationship to the class, has been difficult to formulate. Lawyers who would be counsel for a class, particularly a class proposed by the lawyer, should be expected, like counsel for a person lacking legal capacity, to be protective, proactive and imaginative, and to use professional judgment. I. Introduction . . . . . 1397 II. Class Counsel in a Damages Class Suit . . . . . 1398 III. The Ordinary Client-Lawyer Relationship . . . . . 1399 IV. Contrast: Class Counsel . . . . . 1402 V. The Private Attorney General Analogy . . . . . 1403 VI. The Corporate Representative Analogy . . . . . 1406 VII. The Client with Diminished Capacity Analogy . . . . . 1408 V III. Conclusion . . . . . 1411