Ethical Duties of Class Counsel Also Representing Class Representatives

In their excellent article entitled May Class Counsel Also Represent Lead Plaintiffs?,1 Professors Bruce Green and Andrew Kent explore a particular aspect of two broader questions I have also addressed: (1) who should regulate class action lawyers;2 and (2) who will regulate class action lawyers?3 I, too, focused on lawyers\u27 conflicts of interest; however, Professors Green and Kent focus even more specifically on conflicts arising from class counsel\u27s simultaneous representation of both the class and individual clients who are serving or will serve as class representatives. Their concern is with three particular scenarios in which the class representative\u27s interest conflicts with the interests of the class as a whole: holdouts (where the class representative objects to a settlement viewed by class counsel as benefitting the class as a whole); sellouts (where the class representative wants to settle their individual claim in a manner that may prejudice the interests of the class); and payouts (where the class representative wants to receive unjustified individual payments for serving as a representative).4 After identifying these conflicts, they analyze class counsel\u27s obligations under both rules of professional conduct and class action law (including both Rule 23 of the Federal Rules of Civil Procedure and individual case adjudication).5 They conclude by making suggestions concerning how class counsel can better understand their existing obligations both to their individual clients and to the class6 and what types of reform would further clarify and protect both the individuals and the class. 7 In considering possible reform efforts, they wisely take a realistic view of both institutional expertise and the likelihood that particular reforms could be enacted. This Response agrees with almost everything Professors Green and Kent have to say about this particular type of conflict of interest. The purpose of this brief comment is threefold: first, it explains why the existing rules of professional conduct adequately address the authors\u27 concerns about necessary protections for the individual clients;10 second, it comments on the authors\u27 proposal for federal judicial reform to provide the necessary protections for the class; and third, it offers my own views on the extent to which courts can, do, and should address these issues in the context of individual case adjudication