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ETHICAL CONSIDERATIONS ETHICAL CONSIDERATIONS IN

VIEWS: 17 PAGES: 22

									 ETHICAL CONSIDERATIONS
      IN AGGREGATE
SETTLEMENT NEGOTIATIONS


      Dean A. Hanley, Esq.



                             1
               Agenda
 Applicable   Rules
 Plaintiffs vs. ABC Corporation
 Factors affecting negotiation of
  any settlement(s)



                                             2
                                     10/1/2009
     ABA MODEL RULES
 Rule 1.4 Communication
 Rule 1.7 Conflict of Interest: Current
  Clients
 Rule 1.8 Conflict of Interest: Current
  Clients: Specific Rules(g)




                                                   3
                                           10/1/2009
                     RULE 1.4
                   Communication
a)  A lawyer shall:
    (1) Promptly inform the client of any decision or circumstance with
        respect to which the client’s informed consent, as defined in Rule
        1.0(e), is required by these Rules;
    (2) Reasonably consult with the client about the means by which the
        client’s objectives are to be accomplished;
    (3) Keep the client reasonably informed about the status of the matter;
    (4) Promptly comply with reasonable requests for information; and
    (5) Consult with the client about any relevant limitation on the lawyer’s
        conduct when the lawyer knows that the client expects assistance
        not permitted by the Rules of Professional Conduct or other law.
b) A lawyer shall explain a matter to the extent reasonably necessary to
    permit the client to make informed decisions regarding the
    representation.


                                                                                  4
                                                                          10/1/2009
                   Rule 1.7
     Conflict of Interest: Current Clients
a)   Except as provided in paragraph (b), a lawyer shall not represent a client if the
     representation involves a concurrent conflict of interest. A concurrent conflict
     of interest exists if:
         1) the representation of one client will be directly adverse to another client;
         or
         2) There is a significant risk that the representation of one or more clients
         will be materially limited by the lawyer’s responsibilities to
         another client, a former client or a third person or by a personal interest of
         the lawyer.
b)   Notwithstanding the existence of a current conflict of interest under paragraph
     (a), a lawyer may represent a client if:
         1) the lawyer reasonably believes that the lawyer will be able to provide
         the competent and diligent representation to each affected client;
         2) the representation is not prohibited by law;
         3) the representation does not involve the assertion of a claim by one client
         against another client represented by the lawyer in the same litigation or
         other proceeding before a tribunal; and
         4) each affected client gives informed consent, confirmed in writing.

                                                                                              5
                                                                                      10/1/2009
                 RULE 1.8
    Conflict of Interest: Current Clients
      Specific Rules - Subsection(g)
(g) A lawyer who represents two or more clients
  shall not participate in making an aggregate
  settlement of the claims of or against the clients,
  …
  unless each client gives informed consent, in a
  writing signed by the client. The lawyer’s
  disclosure shall include the existence and nature
  of all the claims or pleas involved and of the
  participation of each person in the settlement.

                                                                6
                                                        10/1/2009
 CALIFORNIA RULES OF
PROFESSIONAL CONDUCT

  Rule 3-310: Avoiding the
 Representation of Adverse
         Interests


                                     7
                             10/1/2009
                   Rule 3-310
c) A member shall not, without the informed written
consent of each client:

   1) accept representation of more than one client in a matter in
   which the interests of the clients potentially conflict; or
   2) accept or continue representation of more than one client in a a
   matter in which the interests of the clients actually conflict; or
   3) …

d) A member who represents two or more clients shall
   not enter into an aggregate settlement of the claims of
   or against the clients without the informed written
   consent of each client.


                                                                                 8
                                                                         10/1/2009
         SCENARIO
Defendant ABC Corporation wants to
settle 8 cases filed by the law offices of
           Plaintiffs & Moore


                     Jones             McCaffery

                               Smith

                     Day       ABC     Morales



                     Mitchel           Sanders
                               Fish

                                                           9
                                                   10/1/2009
CASE #1
      Jones v ABC Corp.
      Mr. and Mrs Jones
      have minor children
       ages 7 and 5 yrs old
      Exposed victim has
       19 year old daughter
       from previous
       marriage
      Strong liability
      Significant damages
                                     10
                              10/1/2009
CASE #2
      Smith v ABC Corp.
      Mr. and Mrs. Smith
      No children
      Husband 10yr worker
       for ABC
      Wife exposed doing
       his laundry



                                    11
                             10/1/2009
                      Case #3
   Fish v ABC Corp.
   Plaintiff is a young male
    adult
   Unmarried
   No children
   Disputed diagnosis of
    mesothelioma
   Disputed liability
   Significant economic
    losses
   Alcoholic

                                       12
                                10/1/2009
                  CASE #4
   Day, et al. v ABC Corp.
   Wrongful Death Action
   Mrs. Day is surviving
    spouse with 2 adult
    children
   Mr. Day was 85 years
    old when he died of
    mesothelioma
   Liability conceded by
    defendant but degree of
    fault disputed
   Significant risk of
    punitive finding unique
    to this case
                                     13
                              10/1/2009
                   CASE #5
   Morales v ABC Corp.
   Wrongful Death Action
   Plaintiffs are 3 surviving
    adult children
    – two financially dependant
    – one self supporting &
      estranged from decedent
   Significant economic
    damages
   Disputed liability
   Possibility of defense
    verdict
                                         14
                                  10/1/2009
CASE #6
      Mitchell v ABC
       Corp
      Adult sibling of
       decedent
      Decedent died of
       mesothelioma
      No economic
       damages
      Highly disputed
       liability

                                 15
                          10/1/2009
                 CASE #7
   Sanders v ABC
    Corp.
   Strong liability case
   No children of their
    own
   Minor dependent
    child who lives in
    another state; result
    of Mr. Sanders’
    extramarital affair

                                   16
                            10/1/2009
               Case #8
   McCaffery v ABC
    Corp.
   Surviving Spouse
   One adult child
   One minor child




                                17
                         10/1/2009
 FACTORS AFFECTING
  NEGOTATION AND
POSSIBLE SETTLEMENT


                         18
                  10/1/2009
FIRST ISSUE
      Mr. Sanders will not
      consent to disclosure to
      other plaintiffs of his
      child born out of
      wedlock. He will agree
      to disclosure of
      “familial circumstances
      which impact the value
      of the case.”


                                   19
                            10/1/2009
SECOND ISSUE
       Mr. Fish will not
       consent to disclosure
       to other plaintiffs of
       his alcoholism. He
       will agree to
       disclosure of “a
       medical condition
       which impacts the
       value of his case.”


                                       20
                                10/1/2009
FINALLY
      Each of the plaintiffs consent
       in writing to group
       negotiations, with the
       following exceptions or
       qualifications:
      Mr. Sanders will consent only
       if he can be assured he will
       get at least $1 million from
       ABC. He is angry at ABC for
       his cancer and “wants them to
       pay and wants an apology.”
      One of the close-knit Morales
       plaintiffs will not consent to a
       group negotiation.


                                                 21
                                          10/1/2009
WHAT NOW?



                   22
            10/1/2009

								
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