“Civil lawsuits—especially class actions and multidistrict litigation (MDL)—can be messy and complicated,” (P. 49) Professor Seth Endo begins his lucid article, Ethical Guardrails to Unbounded Procedure, which is anything but messy and provides a deceptively simple solution to a complicated area of law. Here, Professor Endo sinks his teeth into the question of how judges should approach areas of civil procedure where the Federal Rules of Civil Procedure (FRCP) provide little guidance, biting off a meaty chunk of the beast that is the wild west of MDL complex litigation as his primary illustrative example. His solution? To give teeth to a body of legal authorities already in existence and largely previously ratified by the courts: that of professional-conduct rules.
Professor Endo sets his target on “common-benefit” fees, specific fees afforded to a subset of lawyers in MDL who are members of plaintiffs’ steering committees (PSC), to compensate them for litigation coordination. These fees spring from a void left in procedural rules and statutes.1 These fees are highly controversial, both for affording attorneys’ fees that are disproportionately high compared to plaintiffs’ recovery and because the composition of MDL leadership positions has often been under representative of both the demographic composition of the bar and the plaintiffs.2 As an example, Professor Endo highlights the Propulsid litigation against Johnson & Johnson where common benefit fees amounted to approximately twenty-seven million dollars in contrast to plaintiffs’ recovery at under seven million dollars. (P. 52.) In that case, the seven member PSC was entirely composed of white men despite a “disproportionately large percentage” of the plaintiffs being female. (P. 53.) These types of facts, coupled with the courts’ underutilization of traditional forms of lawyer sanctioning in MDL cases,3 gives the damning impression that courts use these fee structures and lucrative appointments at best to control and manipulate lawyer conduct to privilege expediency and out of court resolution of claims, and at worst to fall prey to bias and reward powerful lawyers at the expense of injured clients and less well-connected attorneys.
Professor Endo provides a straightforward path to avoiding such skewed outcomes and ugly allegations: using professional conduct rules as gap fillers. Over the course of the Article, Professor Endo illustrates how deploying the ABA Model Rules of Professional Conduct (ABA Model Rules) not only supports longstanding legal principles tethering attorney’s fees to concepts of proportionality and reasonableness but also more effectively motivates plaintiffs’ lawyers to focus on client recovery. He begins by establishing that the FRCP often leave open broad swaths of judicial discretion, and that MDL litigation is a particularly salient example of these “unbounded” judicial spaces. Having dispensed with setting the stage, the Article proceeds to the meat of its contribution—making the descriptive and normative assertions that the law governing lawyers should pick up in guiding judicial action where the rules of civil procedure leave off. This starts with a robust outline of how the FRCP have numerous subject matter synergies with the ABA Model Rules and continues by showing the courts’ longstanding role in managing the conduct of attorneys. Having garnered the low-hanging fruit, now Professor Endo reaches towards the more interesting assertion: that through their inherent power to engage in local rulemaking, federal district courts’ ubiquitous adoption of rules aligning with the ABA Model Rules have rendered these rules positive procedural law. (Pp. 71, 102.)
But his point is not just that the law governing lawyers is substantively aligned with civil procedure and a source of law in and of itself (although this alone appears to be news to some)—it is that this area of law reflects a unique locus of deliberative input within positive law and procedure. (Pp. 81-82.) Not only have these rules gone through deliberation at the ABA level, and then locally through state bar deliberations when adopted, but the local rules of federal courts are then subject to FRCP 83, which compels public notice and comment for adoption of local rules. Each of these areas provides a touchpoint for the public. This broadens not only substantive inputs to rulemaking, but claims to transparency, predictability, and neutrality which buttress procedural legitimacy.
The fact that Professor Endo must point out the availability of these authorities speaks to the tacit disenfranchisement of professional responsibility and legal ethics in the minds of courts, academics, and practitioners. I must admit, part of my love for this article stems from the straightforward—yet apparently not obvious—assertion that the law governing lawyers and professional ethics in fact matter, are helpful, and reflect well-thought through rigorous analysis, complete with a rich legislative history. By placing these sources of law on the same playing field as Civil Procedure, Professor Endo reasserts not only their relevance but highlights their underlying centrality to MDL and perhaps all legal practice. While lawyers may practice all types of law, they always are practicing that law within the confines of their professional obligations. Professor Endo’s piece reminds us that courts can, and should, use those guardrails to their advantage and in doing so, better serve our clients, the public, and the currently flailing cause of judicial legitimacy.
- Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. 1, 13-14 (2021).
- See James F. Humphreys Complex Litig. Ctr., George Washington L. Sch., Inclusivity And Excellence: Guidelines And Best Practices For Judges Appointing Lawyers To Leadership Positions In Mdl And Class-Action Litigation 2-4 (2021).
- See Roger Michalski, Ethics by Appointment: An Empirical Account of Obscured Sanctioning in MDL Cases, 74 Hastings L. J. 1373 (2023), noting the idiosyncratic underutilization of Federal Rules of Civil Procedure 11, 26(g), and 37; Federal Rule of Appellate Procedure 38; 28 U.S.C. §§ 1927 and 1447( c) in MDL cases.
