It is somewhat surprising that nearly twenty years after Fred Baron first called attention to the issue of attorney duties to class members in Georgine v. Amchem, the problem of attorney fiduciary duties during pre-certification class proceedings remains largely unresolved. This problem is extremely important given the prevalence of settlement classes in our post-Amchem era. In an excellent piece in the Stanford Law Review, Nick Landsman-Roos has stepped into this doctrinal breach. His article, Front-End Fiduciaries: Precertification Duties and Conflict traverses the landscape of pre-certification professional responsibilities as they intersect with class action jurisprudence.
Landsman-Roos first explicates the problem of class counsel’s pre-certification duties, noting that courts have largely ignored this issue because judges evaluate the adequacy of class counsel at the back end, during the settlement fairness hearing. Such back-end evaluations typically are ex post facto, focusing on what the attorneys already have done, and not on what they may do. In addition, back-end inquiries focus on the requirements of Rule 23 adequacy, rather than on broader ethical obligations. Thus, Landsman-Roos suggests that the problem of pre-certification duties has been given short-shrift because no Federal Rules framework exists for addressing pre-certification attorney conduct. Moreover, pre-certification duties have special salience for addressing conflicts of interest at the outset of class litigation, rather than at the back end of a settlement.
Linda S. Mullenix, Front-End Duties to the Class, Jotwell (The Journal of Thinks We Like Lots) (January 17, 2014), <http://courtslaw.jotwell.com/front-end-duties-to-the-class/> (reviewing Front-End Fiduciaries: Precertification Duties and Class Conflict, by Nick Landsman-Roos).