Volume 74, Issue 5, 1403-1432
When courts consider a choice of class or lead counsel in multidistrict litigation (“MDL”) or class action suits, they often follow the idea of a neutral partisan model. Such a model idealizes lawyer conduct as a blank conduit for client interests. In theory, lawyers should be able to bring their legal expertise absent any personal experiences, individualized identity, and morality outside of practice. But the reality is that neither lawyers nor their clients can fully divorce their identities or moral viewpoints from the legal system.
This Essay argues that an identity-blind choice of class or lead counsel, grounded in a version of lawyering rooted in neutral partisanship, is indefensible in the context of complex litigation. Complex litigation systems ask for a great deal of blind trust from clients because the dilution of the lawyer-client relationship in this type of litigation is severe. In MDL or class action practice, lawyers often must wear two hats—their own and that of the traditional client. The shift of power and control away from the individual client to the lawyer means that oversight falls almost exclusively to the court, various state bar associations, and individual lawyers through self- regulation. This warrants a practice model that accounts for identity and viewpoint alignment in selection. In order to protect clients’ interests—where the vast majority of the class is represented in absentia—it is essential that courts consider the identities of lawyers and their specific views when certifying adequacy of counsel and selecting lead counsel in MDLs. As such, courts should cease the practice of identity-blind choice of class or lead counsel and instead consider the whole person of the lawyer when evaluating petitions to lead such cases.