The Review of Securities & Commodities Regulation has published the article “Legal Ethics Considerations in Class Action Litigation,” written by Neal Marder and Kelly Handschumacher, partner and associate, respectively, in the litigation practice at Akin Gump. Noting that class actions “implicate myriad ethical considerations,” the article looks at the ethical issues surrounding communications with absent class members, settlements and litigation funding.
While the permissible scope of communications is large prior to a class being certified, Marder and Handschumacher write that it is “relatively limited thereafter.” Likewise, they say there are important considerations when it comes to settlements, including whether they can prohibit class counsel from bringing another similar case against the same defendant. With litigation funding, the authors add that a key concern “is whether litigation funders may be able to control aspects of the litigation while wanting to settle at a different price, or litigate at a different cost, than what is in the best interests of the class.”
In the end, Marder and Handschumacher suggest staying up to date on evolving ethics issues, “including the rules of professional conduct applicable in [one’s] jurisdiction and court decisions, rules of civil procedure, and local rules regarding ethical considerations in class action settlements.”
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