Self-Interest, Public Interest and the Interests of the Absent Client: Legal Ethics and Class Action Praxis

Are existing ethical norms adequate to address the realities of class proceedings? In this paper, I explore the premise that existing ethical rules are effective when applied to the conduct of class action litigation. To do so, I draw upon extensive American literature on the subject, as well as Canadian jurisprudence and original research involving the interview of seven class action judges on questions of class action legal ethics. In Part I, I discuss the peculiar features of class proceedings and how they create unique – or exacerbate existing – challenges to the ethical conduct of litigation. In Part II, I confront the fundamental (and often overlooked) question: who is the client in a class proceeding, to whom ethical duties are owed? Having identified the range of judicial and academic views on the unique dimensions of class actions, I then turn, in Part III, to a discussion of the development of ethical rules that seek to respond to them. In the absence of amendments to formal rules of conduct, what are the sources of class counsel’s role morality? I discuss two: the strictures of class proceedings legislation, and judicial development of rules and guidelines. Throughout the paper, but especially in part III, I rely upon information and frank opinions conveyed to me by the seven judges interviewed for this project in the summer and fall of 2010, and in early 2011. I conclude with proposals for amendment to Ontario’s Rules of Professional Conduct that would more accurately address the realities of this model of litigation, and thereby provide clearer guidance to lawyers, the clients they serve, and the judges who play such a significant role in the cases that those lawyers prosecute.