Private lawyers and nonprofit associations possess distinct capabilities that,
when combined, substantially strengthen the legal representation of consumers.
Private and nonprofit attorney co-counseling arrangements combine the litigation
skills and resources of private attorneys with the specialized legal knowledge
and established public relations facilities of nonprofit associations. This
teamwork enhances consumer protection. In this paper, we explain (1) the substantial
benefits of creating litigation teams including private attorney and nonprofit
associations; (2) how to create and structure such a litigation team; and (3)
how to implement the common representation for consumers benefits.
Consumers Benefit from the Joint Representation of Private
Attorneys and Nonprofit Associations
Recent cases demonstrate that consumer legal representation is maximized by
the joint efforts of private and nonprofit association attorneys. See, e.g.,
"The Consumer Advocate" Vol. 6, Issue 1 (January-February 2000) where
William Brennan, Jr., Tim Thompson and Galen Robinson explain how private and
nonprofit partnerships were indispensable in highly successful litigation in
"insurance packing" and "rent-to-own" litigation.2
Currently, the National Consumer Law Center, Trial Lawyers for Public Justice
and other nonprofit groups are co-counseling with private attorneys in a number
of cutting edge cases involving important consumer protection legal questions.
(See attached Exhibit A).
Private and nonprofit co-counseling arrangements succeed because they are symbiotic.
This mutuality thrives because each employs distinct skills to achieve a common
objective. Private attorneys representing consumers utilize litigation as the
primary tool in achieving consumer justice. In this process, private attorneys
maintain specialized substantive and procedural litigation skills focused on
litigating consumer rights to a successful conclusion. By contrast, nonprofits
seek to maximize consumer justice by utilizing broad based means, such as public
relations, lobbying, research, education and litigation. These resources are
readily available to and support the activities of nonprofit attorneys.
A private and nonprofit co-counseling arrangement meshes these distinct capabilities.
A nonprofit association provides valuable co-counsel to private attorneys. They
provide additional counsel with quick, extensive access to substantial research
and/or information depositories. Non-profits provide counsel with specialized
knowledge of important consumer law issues which may be at stake in the litigation.
Where publicity of the case is required for strategic purposes, nonprofit associations
have established public relations abilities. They also provide instant credibility
to the consumer claims alleged. In this connection, courts may be more willing
to "listen and take notice" if a nationally recognized, nonprofit
is one of the counsel advancing the consumer claims.
For example, Judge Gertner in Mazola v. The May Department Stores Company,
CA 97 CV 10872-NG, pp. 8-9 (D. Mass), in a petition for attorneys' fees arising
from the settlement of a nationwide class action, recognized that the unique
collaboration of NCLC and a team of private attorneys challenging the bankruptcy
reaffirmation practices of May Department Stores resulted in one of the "best
ever" consumer class action settlements:
Indeed, this case involves a unique collaboration between private law firms
and the leading non-profit low income consumer advocacy organization in the
country, the National Consumer Law Center. Moreover, the settlement, was not
illusory for the class members, and lucrative only for the lawyers. Consumers
received real dollars, real relief. By all accounts, it is one of the best
settlements obtained in any consumer class action.3
At the same time, private attorneys provide indispensable counsel to nonprofit
consumer litigation efforts. Nonprofits who use litigation to advance consumer
justice may not have the legal resources or knowledge of particular state or
federal courts to advance the litigation. Private attorneys with specialized
litigation abilities, such as on class certification or class settlement issues,
bolster this representation. Private attorneys provide a source for funding
the often high cost of consumer litigation. Non-profits, faced with budget constraints,
may not be able to undertake the substantial risk associated with consumer class
litigation. Experienced class action counsel provide a means to assume or spread
these litigation risks.
In sum, private attorney and nonprofit co-counsel arrangements are mutually
beneficially and lead to maximization of consumer representation.
Private and Nonprofit Co-Counsel Arrangements should be Structured
to Protect the Clients' Interests and to Avoid Potential Conflicts of Interest
Once private and nonprofit attorneys decide to join forces, they should first
work out two separate agreements; a Client Retainer Agreement and a Co-Counseling
Agreement.
These agreements benefit and protect the private and nonprofit relationship
because they force the attorneys to recognize and address potential conflicts
of interest at the outset of the relationship. Potential conflicts of interest
may be inherent in the private and nonprofit litigation relationship with respect
to such issues as (1) the scope of the attorney-client representation; (2) the
type of relief to be requested (i.e., damages and/or injunctive relief); (3)
confidentiality of discovery; and (4) the amount of costs to be shared.
The Client Retainer Agreement
The relationship between private and nonprofit and the client is governed by
applicable rules of professional conduct. See e.g., Model Rules of Professional
Conduct, Rules 1.1 to 1.16 entitled "Client-Lawyer Relationship."
See also, Restatement of the Law, The Law Governing Lawyers, Chap. 6-7 (Tentative
Draft No. 8, 199, ALI). If the action is a class action, the class action rules
may apply to enhance or modify an attorneys ethical obligations. See Rand
v. Monsanto, 926 F.2d 596, 600 (7th Cir. 1991) (Local rules of professional
conduct are valid so long as not inconsistent with federal rules and ethical
rule that plaintiff must assume costs of litigation did not apply in the context
of Rule 23).
Issues that may be included in a typical retainer agreement in a class action
are:
Identification of all counsel to the representation, including roles counsel
will play in the litigation and client's consent to the association of additional
counsel;
The basis for payment of fees and costs. In a class action, such payment
typically will be paid contingently through creation of common fund or by
fee shifting statute;
The basis for payment of costs;
Disclosure of the duties and obligations of a client and/or class representative;
and
Issues related to settlement, including how to deal with client's refusal
to accept recommendation of settlement, how to deal with settlement offers
seeking to "moot" the class or not providing for payment of attorneys'
fees and costs and how to address continued litigation or settlement where
the class has not been certified.
Issues related to potential termination of representation; and
Discussion of role or use of publicity in this case.
The Co-Counseling Agreement
A written co-counseling agreement should be consummated at the outset of the
litigation. A typical co-counseling agreement should address at least the following:
Identify all co-counsel, the clients and the specific subject matter of
the representation;
Explain the respective roles of each counsel, including identifying lead
counsel, local counsel and the role of the nonprofit association. The method
for allocating or deciding work assignments should also be addressed;
Explain the requirements for maintaining contemporaneous time records
and periodically exchanging time records so that all co-counsel are aware
of the respective work being conducted by all other counsel;
Explain how the costs of the litigation will be shared. The nonprofit co-counsel
may seek to cap its ultimate responsibility for ongoing costs;
Identify the methods by which attorneys' fees will be requested and, if
recovered, the method of apportionment amongst counsel. For example, if
a common fund approach is utilized, the agreement should set out how to
apportion the percentage award amongst co-counsel. Typically, such apportionment
would be based upon co-counsel's relative lodestar.
Identify the procedure or method for withdrawal of any co-counsel or amendment
of the agreement.
Possible issues related to confidentiality; and
Coordination and cooperation of co-counsel in generating publicity and/or
responding to press inquiries.
If Properly Implemented, a Private and Nonprofit Litigation
Team Enhances Consumer Protection
Co-counseling between private and nonprofit lawyers should operate as a well-coordinated
team. At the inception of the litigation, counsel should identify the respective
roles of each counsel in the litigation to assure efficient prosecution of the
case. The Manual for Complex Litigation, Third, § 20.21 (Federal
Judicial Center 1995) is instructive on the organizational structure of plaintiffs'
counsel by explaining the various roles of "Lead Counsel," "Liaison
Counsel" and "Committees of Counsel."
In any co-counseling arrangement, it is recommended that co-counsel recognize
a "Lead Counsel." The Manual for Complex Litigation explains
Lead Counsel's duties and obligations:
Lead counsel: charged with major responsibility for formulating (after consultation
with other counsel) and presenting positions on substantive and procedural
issues during the litigation. Typically they act for the group - either personally
or by coordinating the efforts of others - in presenting written and oral
arguments and suggestions to the court, working with opposing counsel in developing
and implementing a litigation plan, initiating and organizing discovery requests
and responses, conducting the principal examination of deponents, employing
experts, arranging for support services, and seeing that schedules are met.
Id. at § 20.21. The litigation team should include a "local"
or "liaison" counsel. This counsel should be familiar with and accustomed
to practicing in the particular forum where the litigation is pending. Another
is counsel should also be designated the client liaison counsel whose duties
are to maintain communications with the client on all matters related to the
representation. Once Lead and Liaison roles are established, the remaining co-counsel
relationship should operate on a committee basis where each counsel assume responsibility
for particular aspects of the representation.
Nonprofit co-counsel easily fit within this structure in that typically the
nonprofit counsel will assume responsibility for addressing legal issues related
to their particular area of expertise.
Conclusion
We recommend that both private and nonprofit attorneys seriously consider the
joint representation of consumers. If structured and implemented properly, these
mutual relationships ultimately improve the quality of and access to legal representation
of consumers.
EXHIBIT A
Rossman, Into the Fray, the Consumer Advocate, Vol. 6, Issue 1, p. 21
(Jan-Feb 2000)
Wells v. Chase, C-99-00202 (Baltimore, MD) (Malakoff Doyle & Finberg,
P.C.; Trial Lawyers for Public Justice and Ward, Kershaw and Minton, representing
consumers in interest and late fee overcharge case)
Tierney v. John Hancock Financial Services, No. 2000-0087 (Suffolk Cty.,
Mass.) (Malakoff Doyle & Finberg, P.C.; Grant & Roddy and NCLC, Inc.
representing policyholders in claims contesting demutualization of life insurer)
Pollice v. National Tax Funding, Inc., 98-813 (W.D. Pa.); Meyers v.
GLS Capital, 98-20274 (Bkrptcy) and other related cases (Malakoff Doyle &
Finberg, P.C. is working with Neighborhood Legal Services both formally and
informally in class action and bankruptcy court litigation which claims that
it is illegal under Pennsylvania law for government entities to sell delinquent
tax liens to a private entity and assess certain allegedly unauthorized charges).
Cason v. Nissan Motor Acceptance Corp., CA 3-98-0223 and Coleman v.
General Motors Acceptance Corp., CA 3-98-0211 (United States District Court
for the Middle District of Tennessee) (Law Office of Clint Watkins; Gilmore
Law Office; Terry & Gore; National Consumer Law Center representing minority
borrowers who were discriminated against when obtaining automobile car loans
in an Equal Credit Opportunity Act case).
Morkavage v. Morgan Stanley Dean Witter & Co. et al, CA 99-40114
(United States District Court for the District of Massachusetts)(Grant &
Roddy, Heisler, Fields & Feldman, P.C.; National Consumer Law Center representing
class of consumers in TILA/UDAP claims against credit card company for unfair
debt collection practices).
Alves v. Harvard Pilgrim Health Care, Inc., et al, CA 99-12559 (United
States District Court for the District of Massachusetts)(Ellis & Rapacki;
National Consumer Law Center representing members of HMO challenging pharmaceutical
co-payment program under ERISA and UDAP statutes)
________________________________________________
1 James Pietz, a NACA member, is with the firm
of Malakoff Doyle & Finberg, P.C. His practice specializes in insurance
and consumer advocacy litigation. He is a 1988 graduate of the Chicago Kent
School of Law.
Stuart Rossman, also a NACA member, is the Director of Litigation at the National
Consumer Law Center.
2See, Brennan, Maximizing Effective Legal Representation
for Lower Income Clients - A Model for Legal Services, Consumer Advocate,
Vol 6, Issue 1 (Jan.-Feb. 2000) and Thompson and Robinson, Co-counseling
Consumer Cases with Private Counsel, Consumer Advocate, Vol. 6, issue 1,
p. 29 (Jan/Feb 2000 NACA).
3Also, the Maryland Supreme Court recently authorized
that a direct appeal be taken in the Wells v. Chase, C-99-00202 (Md.)
The presence of Trial Lawyers for Public Justice as plaintiffs' counsel may
have helped foster this direct right of appeal.
