Choice of Law for Professional Responsibility Issues in Aggregate Litigation (2009)

As the rest of the papers in this symposium issue demonstrate, aggregate litigationi raises difficult, often intractable choice-of-law issues for judges, as well as for litigants and their lawyers. Typically, judges must choose among rules governing not only substantive law, but also statutes of limitations, allocation of damages, and punitive damages. 2 What is less well-recognized is that aggregate litigation may also present difficult choice-of-law issues regarding the ethical conduct of the lawyers involved in these cases. So far, these issues have barely surfaced, not because professional responsibility questions have not been raised with respect to aggregate litigation, but rather because most courts apparently assume either that there are no significant differences among the relevant choices 3 or that it is obvious which jurisdiction's rules apply. 4 As for the former assumption, it may once have been true that the ethical landscape was similar no matter where a lawyer practiced; however, over the past few decades jurisdictions have developed increasingly divergent professional responsibility law, whether by adopting different rules of professional conduct or by interpreting the same rules differently. 5 As for the latter assumption, it may be true that representation in litigation raises fewer professional responsibility choice of law questions than other types of representation; 6 nevertheless, representation in litigation poses far more difficult choice of law questions than has generally been recognized. And, of course, any difficulties presented by ordinary two-party litigation are necessarily multiplied when the litigation is complex. Until recently, professional responsibility choice of law issues were rarely raised even in two-party litigation. Most lawyers tried cases in the states where they were licensed, and the professional responsibility rules were often the same wherever a case was tried. 7 This is no longer the case. Recent decades have witnessed an "incredible growth in law firms with multistate branch offices and a growing need for litigation and transactional legal services that cross state lines." Moreover, although there was some variation in the versions of the ABA Model Code of Professional Responsibility adopted by almost all states shortly after its initial promulgation in 1969, the more halting acceptance of both the original 1983 ABA Model Rules of Professional Conduct and its subsequent amendments have led to increasing conflicts. 9 It is only a matter of time before the choice of law issues raised by these conflicts come to the surface. The purpose of this brief essay is two-fold. First, I want to note the extent to which professional responsibility choice-of-law issues in litigation may be more complicated than is currently thought to be the case, even when the lawsuits are the typical twoparty variety. Second, I want to briefly sketch the nature of the additional complexities posed by aggregate litigation, including both class actions and individual lawsuits that have been aggregated (whether formally or informally) for various purposes. It is not my intention to offer either a comprehensive examination of these difficult issues or a specific proposal to resolve them. Rather, my goal is more modestly to raise consciousness about the nature of the professional responsibility choice-of-law issues that judges, litigants and their lawyers will almost certainly be confronting in the near and distant future.