Settling many clients’ claims at once, and the consent required.
Esshaki Legal Media TeamCurrent as of September 2021
A lawyer representing multiple claimants who settles their claims collectively
must satisfy specific requirements.
The rule. A lawyer may not participate in an aggregate settlement of the
claims of two or more clients unless each client gives informed consent in a
writing signed by the client, after disclosure of the existence and nature of
all the claims, and of the participation of each person in the settlement.
Full disclosure. Each client must know the total amount, what every other
client is receiving, and how the allocation was determined. Disclosure limited
to the individual client’s share does not satisfy the rule.
No advance consent. An agreement signed at retention purporting to authorize
the lawyer to accept a settlement approved by a majority of clients is generally
unenforceable, though some authority permits carefully structured arrangements
with robust safeguards.
Allocation. By an independent allocator or a matrix, with an appeal
mechanism, which reduces the lawyer’s conflict.
Walk-away thresholds. Settlements conditioned on a participation percentage
put pressure on individual clients to accept, and the lawyer must not become the
enforcer of the defendant’s threshold against a client’s interest.
Records. The disclosures and the signed consents, retained, because these
arrangements are challenged years later.