Settle or Find a New Lawyer: Anatomy of an Aggregate Settlement Part II

In Part I, I introduced several types of provisions that a plaintiff might find in the master settlement agreement and gave plaintiffs' involved in women's health MDLs like pelvic mesh a quick reminder to (confidentially) complete the survey about their litigation experiences.

Remember that the master settlement agreement is typically the agreement between a plaintiff's attorney and the defendant (yes, you read that right--plaintiffs' lawyers strike deals with defendants that require them to do certain things...).

Three of the provisions I mentioned included:

(1) "withdrawal or blow provision," which says that unless a certain percentage of the firm's clients (or of all the plaintiffs) agree to settle, then the defendant corporation can exit the deal.

(2) "attorney recommendation provisions," which require plaintiffs' lawyers to recommend that all of their clients accept the settlement offer; and

(2) "attorney withdrawal provisions," which require a plaintiff's attorney to take steps to withdraw from representing clients who refuse to settle.

Here is an example of each taken from American Medical System's Master Settlement Agreement with Freese & Goss, PLLC/Matthews & Associates. You'll first see the withdrawal provision, demanding that at least 95% of plaintiffs agree to settle, then the requirement that Freese & Goss use its "best efforts" to get all of its clients to sign the release, then the withdrawal of counsel provision:

This, by the way, is the only master settlement agreement for the mesh cases that I've seen. It was made public when AMS filed it as an exhibit to its 10K filing with the SEC. Most remain private, so I'm unable to confirm whether others are similar, though I suspect that they are.

Each provision works hand-in-hand with the others. AMS wants to end the litigation, so it says that unless it gets a certain percentage of plaintiffs to sign up, then the deal is off.

In order to reach that threshold, the plaintiff's law firm must use their best efforts (read: do a little arm twisting) to get their clients to settle.

If that fails, then Freese & Goss must take steps to withdraw from representing those clients.

Today's focus is on the withdrawal of counsel. Legal ethics professors Howard Erichson and Benjamin Zipursky have written extensively about the ethics of these provisions in the context of the Vioxx settlement. They explain that the ABA's Model Rule of Professional Conduct 1.16(a) governs whether and when a lawyer may terminate her relationship with a client. Here's what they have to say:

Cases overwhelmingly reject the idea that a lawyer may fire a client for declining a settlement against the lawyer's advice. . . . Whether the stakes are immigration status or tort compensation, the settlement decision belongs to the client; a lawyer may not use the treat of withdrawal to hijack that decision.

Like the Vioxx Settlement Agreement, the AMS deal requires lawyers to take steps to withdraw from representing clients who decline to settle. Can Freese & Goss's obligations to AMS (the defendant!) provide good cause to withdraw under the ethics rules? Put differently, can a plaintiff's lawyer's deal with the corporate defendant allow an attorney to shirk obligations to a client?

Professors Erichson and Zipursky put it bluntly:

[T]he very idea that entering into a contract with a client's adversary could establish good cause to withdraw from representing a client is troubling.

In other words, no.

What about the requirement that Freese & Goss recommend that all of their clients settle? Should we worry about that, too?

Let me phrase the question differently: is everyone involved in the pelvic mesh litigation similarly situated? Would everyone be comfortable if their attorney gave them a uniform recommendation?

Of course not. Clients may share some things in common and many are aggregated in the MDL before Judge Goodwin, but there are important differences. A deal may be good for some and not for others. A deal might, for example, not define certain surgeries as "mesh related." That could mean that a client with only one mesh removal surgery is well compensated, but others with multiple surgeries that don't all fit within the governing definition aren't.

Lawyers' obligations in mass torts that aren't certified as class actions run to each client individually for precisely this reason.

Professors Erichson and Zipursky conclude that both mandatory recommendation and withdrawal provisions violate the ethics rules:

The mandatory-recommendation provision is inconsistent with the lawyer's duty to give independent and loyal advice to clients. The mandatory-withdrawal provision violates the bar on practice restrictions, the constraints on terminating the lawyer-client relationship, and the principle that the decision to accept or reject a settlement belongs to the client.

I agree. Unfortunately, that doesn't mean that it doesn't happen. As I explore in my forthcoming book, 34% of the judges in my dataset allowed attorneys to withdraw from representing non-settling clients.

Want to share your litigation experience? Please participate confidentially in my new project, a survey on litigants' experience with the justice system in women's health mass torts like those over pelvic mesh, talc, NuvaRing, Mirena, etc. Or feel free to email me confidentially (masstortsuga@gmail.com).