Mediation Message No. 4


An attorney who represents more than one party (plaintiffs or defendants) in the same action must not only be certain that he/she has advised those multiple clients in writing of any potential or actual conflict that exists between them and then have these clients waive that conflict in writing (Rule of Professional Conduct 3-310(C) but also, when later resolving that same case, “not enter into an aggregate settlement of the claims of or against the clients without the informed written consent of each client.” (Rule of Professional Conduct 3-310(D)).

“Aggregate settlement” is not defined in 3-310(D) or appellate decision. One possible interpretation is that the situation applies to any settlement which globally and without any breakdown or delineation (e.g., a lump sum judgment) affects the rights or obligations of more than one plaintiff or defendant in the action as opposed to specifying the damages, benefit or other remedy to be received by or for each of the prevailing parties or to be imposed against each of the losing parties.

Mass tort, wrongful death and a vehicle accident with several injured occupants are typical of the types of cases with more than one plaintiff. Products liability, business disputes, construction defect and employment cases frequently result in multiple defendants. In those circumstances where parties are represented by only one attorney and there is an aggregate settlement, that attorney must obtain the “informed (i.e., the nature of the conflict has been explained) written consent” from each of his/her clients (and not just from those who shall benefit from or be burdened by the terms of the settlement).

Copyright July 2003

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