Avoiding Ethics Violations and Malpractice Liability in Class Action Litigation

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, January 24, 2008

Program Materials


Recent civil RICO suits and criminal prosecutions involving Milberg Weiss attorneys on charges they paid kickbacks to lead plaintiffs in class action suits have brought heightened attention to the ethical issues surrounding class action cases.

Class action litigation presents unique ethical challenges and malpractice vulnerabilities due to an increased potential for conflicts of interest, no contact rules, solicitation issues, and attorneys’ fees. However, the Model Rules do not specifically address how to resolve these common dilemmas.

Courts generally adapt the Model Rules to fit ethical concerns in class lawsuits, but unsettled and divergent viewpoints among class action plaintiff and defense counsel make applying the standard rules vastly more complicated.

Listen as our panel of legal ethics and complex litigation attorneys discusses best practices for dealing with the ethical hurdles and malpractice threats inherent when there are large classes of plaintiffs in a single lawsuit.



  1. Conflicts of interest within the class
    1. Differences among class members
      1. Rule 23 requirements
      2. Supreme Court rulings
        1. Anchem Products v. Windsor (U.S. 1997)
        2. Ortiz v. Fibreboard Corp. (U.S. 1999)
        3. General Telephone v. Falcon (U.S. 1982)
    2. Model Rules
      1. General conflict of interest rule
      2. Written consent if conflict may have material impact on attorney’s
      3. duties to client
      4. Application to class action litigation
    3. Model Code
  2. Communication with class members
    1. Solicitation
    2. Ex parte communications
      1. Model Rules
      2. Model Code
      3. Application of no-contact rule
      4. Pre-class certification
      5. Post-class certification
  3. Ethical issues in settlements
    1. Negotiating attorneys’ fees
      1. Model Rules
      2. Model Code
      3. Manner in which fees are negotiated
      4. Timing—when should fees be negotiated?
      5. Disparity in recovery for class representatives/members with counsel v. absent class members
      6. Reasonableness of attorneys’ fees
    2. Non-monetary class benefits—how to place a value on these benefits?
    3. When named plaintiff settles pre-certification
    4. When a plaintiffs’ lawyer leaves case pre-settlement (McGuire Woods situation)


The panel reviewed these and other key questions: 

  • What guidance do the Model Rules, Amended Federal Rule of Civil Procedure Rule 23, and case law provide in resolving the ethical issues that come up in complex and class litigation?
  • At what point can plaintiff and defense attorneys make contact with potential class members?
  • When and how does precertification settlement by a named plaintiff create a conflict of interest as it relates to other potential class members?


Thomas L. Allen
Thomas L. Allen

Reed Smith

He has over 25 years experience defending clients in complex litigation, including defending more than 75 class actions...  |  Read More

Brian Brooks
Brian Brooks
O'Melveny & Myers

He focuses on complex financial services litigation, including class actions. He is a frequent speaker at financial...  |  Read More

Richard Cirillo
Richard Cirillo
King & Spalding

He has represented major securities firms in antitrust class actions. He has written numerous articles on ethics law...  |  Read More