Eli Wald

Volume 74, Issue 5, 1433-1458

The legal ethics of class actions is a mess, with many lingering, unresolved questions and conflicting answers. The culprit is a fundamental lack of agreement regarding the identity of the client, without which it is impossible to consistently resolve concerns about conflicts of interest and determine the scope of lawyers’ duties of competence and communication to the class, class representative, and class members. This Essay offers a simple solution to this disagreement: the class lawyer represents the class as an entity, not the class representatives and members, who are constituents of the class client. While conceptually simple, treating the class as the client is but the first step on the road to untangling the legal ethics of class actions. The representation of entity clients requires a well-developed governance structure, complete with authorized constituents who can make decisions and communicate on behalf of the entity. Current class action law does not yet include such a governance structure for class actions. Instead, the class representative and class members are sometimes treated as clients and sometimes as authorized constituents, while class lawyers and courts are called upon to make decisions for the class as if they were its constituents. This Essay outlines a way out of this mess. It argues that we ought to keep things simple by treating the class as the entity client and developing governance structures to allow the class to act via authorized constituents, reducing its reliance on class counsel and judicial supervision.