Ethics and the Settlement of Mass Torts: When the Rules Meet the Road

The settlement of mass torts through the class action device presents some difficult and troubling issues, including important questions of due process, fairness, justice, efficiency, equality, equity, and ethics. In this context, some of these foundational values conflict with each other and must be resolved by judges who must decide actual cases. In analyzing the applicable laws and rules (class action rules, constitutional provisions, and ethics rules) we find answers or suggestions that are often ambiguous or contradictory. All of these unresolved ambiguities raise the question of whether mass torts are any different from any number of difficult cases our legal system faces. I do think that mass torts present us with some novel issues that question the transsubstantivity of our laws and rules. While others in this symposium focus on the procedural and substantive issues raised by such cases, I will focus on the ethics of such settlements in two senses: First, at the level of professional ethics, I will examine what is ethically permissible behavior in the way in which such settlements are arranged. Second, at the higher, broader level of ethics, I will examine the nature of an ethically just or fair settlement. Although lawyer ethics are only part of the larger considerations of what makes a settlement ethical, the professional responsibility questions raised in recent mass torts cases reveal a bigger problem for legal ethics generally. This problem involves situations where rules are so ambiguous or self-contradictory that they cannot govern behavior clearly