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In the absence of rules permitting lawyers to charge a contingency fee, complex, expensive litigation on behalf of litigants with small value claims requires external funding. Even where contingency fees are permitted, as is the case in all Canadian jurisdictions and in a handful of EU member states, the possibility of adverse costs and varying levels of risk tolerance and financial capacity among law firms still leave a gap for external funding. Legal expense insurance has had limited success. While the commercial Third Party Litigation Funding (TPLF) industry continues to grow in many EU collective redress regimes, its not-for-profit cousin has received far less attention. Yet, the latest EU Directive envisions the possibility of public funding “to ensure that the costs of the proceedings related to representative actions do not prevent qualified entities from effectively exercising their right to seek [injunctive and redress] measures.” In this brief paper, I aim to contribute to discussions about TPLF in Europe by highlighting a viable alternative to commercial funding entities: not-for-profit litigation funders. In Canada, two such public funders have existed for decades. In the first part of this paper, I explain the purpose of Ontario's Class Proceedings Fund and its historical impetus. I then describe the structure and functioning of the Fund. In the third part of the paper, I explore some of the satellite litigation that has involved the Fund. Finally, I discuss both its successes and its limitations. In the end, the Fund serves both as inspiration and cautionary tale for potential not-for-profit funding entities in EU Member States.
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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.
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