Informal Aggregation: Procedural and Ethical Implications of Coordination among Counsel in Related Lawsuits

Even when related claims are not aggregated by any formal procedural mechanism, the lawyers involved in the separate lawsuits often coordinate their efforts. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship. As an ethical matter, the central question is whether a lawyer owes ethical duties to a coordinating lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, Professor Erichson suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection, and the problem inheres in the nature of informal aggregation. Written cooperation agreements, however, alleviate some of the risks. As a procedural matter, Professor Erichson considers the virtual Copyright © 2000 by Howard M. Erichson. t Associate Professor, Seton Hall University School of Law, [email protected]. B.A., Harvard University; J.D., New York University. My thanks to Stephen Gillers, Mitchell Lowenthal, Paul Rheingold, Tom Rowe, Charles Sullivan, Jay Tidmarsh, and Mark Weber for their comments on earlier drafts; to Dennis Gregory and Paul Matey for their outstanding research assistance; and to the Seton Hall Law School faculty scholarship fund for financial support of this project. Special appreciation to Mitchell Lowenthal for getting me started seven years ago thinking about the implications of lawyer coordination and to the participants in my complex litigation seminar for sustaining and reinvigorating that interest.