Conflicts of Interest in Multiple Representation: Part II

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Once a joint representation commences, the attorney owes each client the full panoply of duties that inhere in every attorney-client relationship. Restatement (Third) of the Law Governing Lawyers §122 cmt. h (2000).

Equal Degree of Loyalty

In particular, each client has the right to loyal and diligent representation. Model Rule 1.7 cmt. [33]; Illinois Ethics Op. 13-02, 29 Law. Man. Prof. Conduct 154 (2013).

The shared attorney owes the co-clients an equal degree of loyalty and may not favor the interests of one client over another client, or assist one client contrary to another's interests. Nelson Bros. Prof'l Real Estate, LLC v. Freeborn & Peters, LLP, 2014 BL 342848, 773 F.3d 853, 30 Law. Man. Prof. Conduct 774 (7th Cir. 2014); Felix v. Balkin, 49 F. Supp. 2d 260, 15 Law. Man. Prof. Conduct 209 (S.D.N.Y. 1999); Fla. Bar v. Adorno, 2011 BL 106944, 60 So. 3d 1016, 27 Law. Man. Prof. Conduct 293 (Fla. 2011); Fla. Bar v. Ticktin, 2009 BL 110974, 14 So. 3d 928, 25 Law. Man. Prof. Conduct 297 (Fla. 2009); Alaska Ethics Op. 2012-3, 29 Law. Man. Prof. Conduct 154 (2012).

Confidentiality and Information-Sharing

For lawyers who are handling a multiple representation, one of the biggest problems that can arise is a confidentiality crisis, which typically develops when one of the clients confides important information that the other clients need to know—but tells the lawyer to keep quiet about it.

Several factors make this situation especially difficult. First, clients embarking on joint representation usually don't realize that their private information may need to be shared with the other clients. In addition, engagement agreements often are silent on the issue. Moreover, authorities a lawyer may consult to find guidance on the issue give inconsistent advice on confidentiality and information flow during multiple representation.

For a detailed review and analysis of the conflicting authorities, see Thomas E. Spahn, Keeping Secrets or Telling Tales in Joint Representations: Part I, 27 Law. Man. Prof. Conduct 303, and Keeping Secrets or Telling Tales in Joint Representations: Part II, 27 Law. Man. Prof. Conduct 342.

In these two articles, the author urges lawyers to address the information-flow issue up front in the engagement agreement with the jointly represented clients; however, he makes clear that an information-flow agreement will not remove all uncertainty if and when a confidentiality crisis does develop during the course of multiple representation.

Confidentiality Principles

Courts often say that joint clients cannot expect confidentiality for information exchanged with their shared lawyer during the common representation See, e.g., Anten v. Superior Court, 2015 BL 24105, No. B258437, 31 Law. Man. Prof. Conduct 50 (Cal. Ct. App. Jan. 30, 2015) (lawyers' communications with one former client were not confidential as to other former client because participants in joint representation arrangements cannot expect that discussions with counsel will be shielded from co-clients); Unnamed Attorney v. Ky. Bar Ass'n, 186 S.W.3d 741, 22 Law. Man. Prof. Conduct 167 (Ky. 2006) (before agreeing to represent husband and wife in investigation into fatal shooting of wife's ex-husband, lawyer was obligated to explain there would be no confidentiality as between them and the lawyer and that all information discovered would be furnished to both of them); GEM Holdco, LLC v. Changing World Techs., LP, 2015 BL 4465, No. 650841/2013, 31 Law. Man. Prof. Conduct 30 (N.Y. Sup. Ct. N.Y. Cnty. Jan. 9, 2015) (unpublished) (“in a joint client situation, confidences are necessarily disclosed”).

Courts also often say there can be no secrets between or among joint clients about facts material to the representation. FDIC v. Ogden Corp., 202 F.3d 454, 16 Law. Man. Prof. Conduct 50 (1st Cir. 2000); Felix v. Balkin, 49 F. Supp. 2d 260, 15 Law. Man. Prof. Conduct 209 (S.D.N.Y. 1999); Sec. Investor Prot. Corp. v. Stratton Oakmont, Inc., 213 B.R. 433 (Bankr. S.D.N.Y. 1997).

However, these broad propositions do not tell the whole story about confidentiality during multiple representation. For example, some ethics committees have said joint representation of multiple clients does not provide implied authorization for the shared lawyer to disclose one client's confidences to the other clients. E.g., ABA Formal Ethics Op. 08-450, 24 Law. Man. Prof. Conduct 240 (2008); District of Columbia Ethics Op. 296, 16 Law. Man. Prof. Conduct 210 (2000); see also PilePro, LLC v. Chang, 2015 BL 15009, No. A-12-CA-829-SS, 31 Law. Man. Prof. Conduct 31 (W.D. Tex. Jan. 22, 2015) (rejecting law firm's argument that participants in joint representation have no right to claim confidentiality).

Information-Sharing Crisis

In multiple representation, the issue of confidentiality is closely linked with the issue of information-sharing. As in every attorney-client relationship, a lawyer representing multiple clients in the same matter has an obligation to inform each client of any significant developments the client needs to know to make knowledgeable decisions. Model Rule 1.7 cmt. [31]; Restatement (Third) of the Law Governing Lawyers §60 cmt. l (2000); In re Beckner, 778 N.E.2d 806, 18 Law. Man. Prof. Conduct 718 (Ind. 2002).

See also District of Columbia Ethics Op. 366, 30 Law. Man. Prof. Conduct 102 (2014) (noting tension between keeping each client's secrets under confidentiality rule and duty to keep client informed about key developments); San Diego County Ethics Op. 2013-1, 29 Law. Man. Prof. Conduct 326 (2013) (discussing duty of communication in context of joint representation where lawyer receives settlement offer that favors one joint client over another).

If important information or communications with one joint client must be kept secret from another joint client, the joint representation is likely to be inadequate. Model Rule 1.7 cmt. [31]; So v. Suchanek, 2012 BL 18176, 670 F.3d 1304, 28 Law. Man. Prof. Conduct 50 (D.C. Cir. 2012).

When one joint client reveals material information to the lawyer but asks the lawyer not to tell the other clients and won't back off from that position, the lawyer may need to withdraw from representing one or both clients. Restatement §60 cmt. l; ABA Formal Ethics Op. 08-450, 24 Law. Man. Prof. Conduct 240 (2008); Vermont Ethics Op. 2011-2, 27 Law. Man. Prof. Conduct 715.

The Restatement advises that in this situation the lawyer has discretion to warn the co-client that “a matter seriously and adversely affecting that person’s interests has come to light, which the other co-client refuses to permit the lawyer to disclose.’’ It says the lawyer may warn the affected co-client or even reveal the damaging information to the co-client if “in the lawyer's reasonable judgment, the immediacy and magnitude of the risk to the affected co-client outweigh the interest of the communicating client in continued secrecy.” Restatement (Third) of the Law Governing Lawyers §60 cmt. l (2000).

Consult State Ethics Rule on Confidentiality

In this difficult situation, the lawyer needs to consult the state’s ethics rule on confidentiality to evaluate whether the lawyer may, must or must not reveal the adverse information to the affected co-clients. Compare District of Columbia Ethics Op. 296, 16 Law. Man. Prof. Conduct 210 (2000) (law firm that represents both employer and employee in obtaining work visa for employee may not unilaterally disclose to employer that employee fabricated credentials for visa, but may consider “noisy’’ withdrawal), Florida Ethics Op. 95-4 (1997) (lawyer who represents spouses in estate planning may not reveal to wife that husband wishes to provide for beneficiary who is unknown to wife), New York State Ethics Op. 555 (1984) (lawyer representing partners in partnership affairs may not disclose to one joint client a confidential communication from other joint client that would be disadvantageous to first client), Rhode Island Ethics Op. 96-08 (1996) (lawyer who represents co-defendants may not reveal that one co-defendant committed certain misconduct) and Vermont Ethics Op. 2011-2, 27 Law. Man. Prof. Conduct 715 (lawyer representing lender and borrower may not inform lender that borrower plans to circumvent lender's rule on seller concessions that exceed closing costs) with A. v. B., 726 A.2d 924, 15 Law. Man. Prof. Conduct 155 (N.J. 1999) (law firm that prepared married couple’s will may disclose to wife that husband has fathered another woman’s child) and Massachusetts Ethics Ops. Op. 09-03, 25 Law. Man. Prof. Conduct 113 (2009) (lawyer representing foreign worker and employer must tell employer that government has revoked worker's employment authorization, even if employer directs lawyer not to disclose that information) and 99-5 (1999) (lawyer who represents two co-administrators of estate and learns that beneficiary stole money and gave it to one co-administrator has duty to reveal theft to other co-administrator).

Advance Planning for Information Flow

When seeking informed consent to proposed multiple representation, lawyers need to address the issues of confidentiality and information-sharing with the prospective clients. See Model Rule 1.7 cmt. [31] (lawyer should “advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other”); Restatement (Third) of the Law Governing Lawyers §60 cmt. l (2000) (“the lawyer is required to inform each co-client of the effect of joint representation upon disclosure of confidential information,” including that “all material information will be shared with each co-client during the course of the representation”); District of Columbia Ethics Op. 296, 16 Law. Man. Prof. Conduct 210 (2000) (lawyer should address, in advance, impact of joint representation on lawyer’s duty to maintain client’s confidences and to keep each client reasonably informed).

Ideally the lawyer will reach a clear understanding with the would-be joint clients on the information-sharing issue, and document that arrangement in the engagement agreement. While an information-flow agreement is not a cure-all in the event of a confidentiality crisis, a specific, documented agreement may help reduce uncertainty and provide guidance to both the lawyer and the clients during the joint representation.

No Secrets vs. Keep Secrets

Most lawyers prefer a “no secrets” arrangement approach in which the clients expressly give consent in advance for the lawyer to share each client's confidences with the other joint clients. There are conflicting views, however, on whether a lawyer may or must honor such an agreement.

At one end of the spectrum, ABA Formal Ethics Op. 08-450, 24 Law. Man. Prof. Conduct 240 (2008), expressed strong doubt that a client could provide valid consent in advance for the lawyer to reveal information to the other jointly represented clients when that disclosure would be damaging to the client's interests.

On the other hand, District of Columbia Ethics Op. 327 (2006) takes the position that a lawyer must honor such an agreement in the event one joint client discloses sensitive information that the client does not want to be shared with the other jointly represented clients. See also Restatement §60 cmt. 1 (lawyer must honor such agreements).

In any event, most lawyers do not use a “keep secrets” arrangement in which the lawyer promises not to reveal each client's confidences to the other jointly represented clients. After all, a multiple representation is probably doomed from the very start if the prospective co-clients are already keeping secrets from each other.

Various authorities recognize, however, that clients may have a legitimate interest in keeping certain information such as trade secrets beyond reach of other clients in a multiple representation. See Model Rule 1.7 cmt. [31] (lawyer and clients may agree in limited circumstances that lawyer will not disclose certain information such as one client's trade secrets to other joint clients); Restatement §60 cmt. l (co-clients can explicitly agree that lawyer is not to share certain information such as described categories of proprietary, financial or similar information with other co-clients, and lawyer must honor such agreements).

Attorney-Client Privilege

When two or more persons or entities use the same attorney to represent them in a matter of common interest, one client's communications are generally not privileged as against the other jointly represented clients. Brandon v. W. Bend Mut. Ins. Co., 681 N.W.2d 633, 20 Law. Man. Prof. Conduct 404 (Iowa 2004); Williamson v. Edmonds, 880 So. 2d 310, 20 Law. Man. Prof. Conduct 423 (Miss. 2004).

In particular, if the lawyer's co-clients become litigation adversaries, the privilege does not shield one client's communications with the shared lawyer during the multiple representation from the co-clients. Restatement (Third) of the Law Governing Lawyers §75(2) (2000); In re Teleglobe Commc'ns Corp., 2007 BL 290966, 493 F.3d 345, 23 Law. Man. Prof. Conduct 373 (3d Cir. 2007); Mueller Indus., Inc. v. Berkman, 2010 BL 70424, 927 N.E.2d 794, 26 Law. Man. Prof. Conduct 224 (Ill. App. Ct. 2010).

However, when a lawyer continues joint representation after the co-clients' interests diverge significantly, “the black-letter law is that when an attorney (improperly) represents two clients whose interests are adverse, the communications are privileged against each other notwithstanding the lawyer's misconduct.” In re Teleglobe Commc'ns Corp., 493 F.3d at 368, 23 Law. Man. Prof. Conduct 373, citing Eureka Inv. Corp. v. Chi. Title Ins. Co., 743 F.2d 932 (D.C. Cir. 1984).

And in litigation matters involving third parties, any co-client may invoke the attorney-client privilege for all protected communications during the joint representation, unless the privilege has been waived by the client who made the communication. Restatement §75(1).

A lawyer should assert the attorney-client privilege if asked to testify in a subsequent dispute between former joint clients. See Ogden v. Groves, 241 So. 2d 756 (Fla. Dist. Ct. App. 1970) (in subsequent litigation between former joint clients, attorney permitted to testify only about statements by joint clients in presence of each other, not private statements made to lawyer); Connecticut Informal Ethics Op. 99-38 (1999) (lawyer who jointly represented two clients who subsequently became involved in dispute must invoke attorney-client privilege if called upon by one to testify about confidential information obtained from other).

In malpractice actions growing out of multiple representation, the plaintiff has sometimes been allowed to discover privileged communications during the underlying matter between the lawyer and another joint client. E.g., Anten v. Superior Court, 2015 BL 24105, No. B258437, 31 Law. Man. Prof. Conduct 50 (Cal. Ct. App. Jan. 30, 2015) (client suing former lawyer for malpractice is entitled to discover communications between lawyer and jointly represented co-clients who chose not to sue lawyer); Williamson v. Edmonds, 880 So. 2d 310, 20 Law. Man. Prof. Conduct 423 (Miss. 2004) (former clients suing lawyer for malpractice may discover what other clients received in aggregate settlement). 

Termination of Joint Representation

If joint clients' interests become adverse, a joint representation does not simply evaporate, but rather remains intact until it is expressly terminated or until circumstances indicate to all the clients that the relationship is over. FDIC v. Ogden Corp., 202 F.3d 454, 16 Law. Man. Prof. Conduct 50 (1st Cir. 2000).

Model Rule 1.16(a)(1) mandates withdrawal from a client's representation if “the representation will result in violation of the rules of professional conduct or other law,’’ including Model Rule 1.7. Accordingly, withdrawal is required in the event of a conflict that makes the multiple representation contrary to Rule 1.7 or other ethics rules.

Withdrawing from representation of one client when an incurable conflict arises does not always make it permissible to continue representing the other client. E.g., United States v. Self, 2012 BL 133112, 681 F.3d 190, 28 Law. Man. Prof. Conduct 371 (3d Cir. 2012).

If the multiple representation doesn't work out, the lawyer ordinarily will be forced to withdraw from representing all of the joint clients. Model Rule 1.7 cmt. [29]; Restatement (Third) of the Law Governing Lawyers §121 cmt. e(i) (2000); In re Corn Derivatives Antitrust Litig., 748 F.2d 157 (3d Cir. 1984); Carroll v. Superior Court, 124 Cal. Rptr. 2d 891, 18 Law. Man. Prof. Conduct 574 (Cal. Ct. App. 2002); Unnamed Attorney v. Ky. Bar Ass’n, 1 S.W.3d 474, 15 Law. Man. Prof. Conduct 486 (Ky. 1999). But see Massachusetts Ethics Op. 2002-2 (2002) (if conflict was unforeseeable, it may be possible for lawyer to withdraw from only one representation).

With regard to continued representation after a conflict arises during multiple representation, Comment [4] to Rule 1.7 states that “whether the lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client.”

The ABA ethics committee advised that a lawyer's duty to withdraw under Rule 1.16(a) must be evaluated separately with respect to each joint client. “If the continued representation of any client would cause the lawyer to violate a Rule … withdrawal from that representation will be required.” ABA Formal Ethics Op. 08-450, 24 Law. Man. Prof. Conduct 240 (2008).

Also bearing on this issue is Rule 1.9, which prohibits representation of a current client against a former client in the same or a substantially related matter. If joint clients' interests become materially adverse, their former counsel may not represent either of them without the other's informed consent in that matter or a substantially related one. PilePro, LLC v. Chang, 2015 BL 15009, No. A-12-CA-829-SS, 31 Law. Man. Prof. Conduct 31 (W.D. Tex. Jan. 22, 2015); In re Kalla, 2012 BL 20581, 811 N.W.2d 576, 28 Law. Man. Prof. Conduct 93 (Minn. 2012).

In particular, Rule 1.9 bars the shared lawyer, without informed client consent, from representing one joint client against the other in a dispute that grows out of the multiple representation. Brennan’s Inc. v. Brennan’s Rest. Inc., 590 F.2d 168 (5th Cir. 1979); Robertson v. Wittenmyer, 736 N.E.2d 804, 16 Law. Man. Prof. Conduct 607 (Ind. Ct. App. 2000); In re Wyatt, 2009 BL 200812, 982 A.2d 396, 25 Law. Man. Prof. Conduct 523 (N.H. 2009); In re Stein, 177 P.3d 513, 24 Law. Man. Prof. Conduct 169 (N.M. 2008); New York County Ethics Op. 716 (1996); Rhode Island Ethics Op. 96-07 (1996). See also Vermont Ethics Op. 2011-2, 27 Law. Man. Prof. Conduct 715 (whether lawyer may continue to represent one client after withdrawing from representation of other client is governed by rule on duties to former clients).

A minority view holds that a jointly represented client cannot invoke the substantial relationship test since the joint clients have already shared confidences. E.g., Shorter v. Shorter, 740 So. 2d 352 (Miss. Ct. App. 1999). Most courts reject that view. E.g., PilePro, LLC v. Chang, 2015 BL 15009, No. A-12-CA-829-SS, 31 Law. Man. Prof. Conduct 31 (W.D. Tex. Jan. 22, 2015).

Revocation of Consent

A client that consented to joint representation may revoke the consent at any time and terminate the representation. See Model Rule 1.7 cmt. [21]; Restatement (Third) of the Law Governing Lawyers §122 cmt. f (2000); see also Model Rule 1.16(a)(3) (client may fire lawyer).

According to Model Rule 1.7 cmt. [21], whether revocation of consent precludes the lawyer from continuing to represent the other client depends on the circumstances, “including the nature of the conflict, whether the client revokes consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.’’

The Restatement indicates that if one client revokes his consent without good reason, the lawyer may continue representing the other client in the matter if the lawyer and other client have already relied on the consent to their detriment. See Restatement §122 cmt. f, which states that a joint client may be justified in revoking consent to multiple representation when:

• a material change occurs in the factual basis on which the client originally gave informed consent, such as when the co-clients develop seriously antagonistic positions;

• the shared lawyer favors the other client; or

• the other client takes harmful action, such as revealing the co-client’s confidences to a third party.

Some ethics opinions likewise indicate that one joint client's revocation of consent does not invariably require the lawyer to stop representing the other client. If there is no prior agreement, the propriety of the lawyer's continued representation depends on the particular circumstances. District of Columbia Ethics Op. 317 (2002); New York State Ethics Op. 903, 28 Law. Man. Prof. Conduct 123 (2012); North Carolina Ethics Op. 2007-11, 23 Law. Man. Prof. Conduct 459 (2007).

Accommodation Clients

The concept of “accommodation’’ clients, based on Allegaert v. Perot, 556 F.2d 246 (2d Cir. 1977), sometimes comes into play when a conflict develops during a joint representation involving a long-term, substantial client and a one-time, temporary client.

The Restatement accepts the idea of “accommodation’’ clients and says a lawyer may continue representing the regular client after withdrawing from representation of the accommodation client if circumstances warrant an inference that the accommodation client understood and implicitly consented to the continued representation of the regular client. Restatement (Third) of the Law Governing Lawyers §132 cmt. i (2000); accord In re Rite Aid Corp. Sec. Litig., 139 F. Supp. 2d 649, 17 Law. Man. Prof. Conduct 281 (E.D. Pa. 2001).

Although some courts have followed Allegaert, others reject it as inconsistent with the rules governing conflicts with former clients and with the duty of loyalty that lawyers owe to all of their clients. E.g., Sec. Investor Prot. Corp. v. R.D. Kushnir & Co., 246 B.R. 582 (Bankr. N.D. Ill. 2000); Koch v. Koch Indus., 798 F. Supp. 1525 (D. Kan. 1992); Casco N. Bank v. JBI Assocs. Ltd., 667 A.2d 856 (Me. 1995).

Advance Waiver

As noted above in the discussion of engagement agreements, the argument for allowing continued representation of a primary client after withdrawing from representation of the other client can be strengthened by spelling out in the retainer agreement that the lawyer will continue to represent the primary client if a conflict develops during the representation. E.g., In re Rite Aid Corp. Sec. Litig., 139 F. Supp. 2d 649, 17 Law. Man. Prof. Conduct 281 (E.D. Pa. 2001); Zador Corp. v. Kwan, 37 Cal. Rptr. 2d 754 (Cal. Ct. App. 1995).

If the waiver is enforceabe, Rule 1.9 does not apply. GEM Holdco, LLC v. Changing World Techs., LP, 2015 BL 4465, No. 650841/2013, 31 Law. Man. Prof. Conduct 30 (N.Y. Sup. Ct. N.Y. Cnty. Jan. 9, 2015) (unpublished) (law firm that represented two sets of corporate co-defendants who later turned on each other may continue as counsel for one set of defendants because of future conflicts waiver in firm's joint defense agreement).

Next: Multiple representation in particular practice areas.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.


ACTEC Advice on Information-Sharing Crisis

Lawyers can find additional guidance on information-sharing and confidentiality dilemmas during joint representation in the ACTEC Commentaries on the Model Rules of Professional Conduct (4th ed. 2006), which were developed by the American College of Trust and Estate Counsel.

In the commentary on Model Rule 1.6 (confidentiality), ACTEC advises that a lawyer faced with a confidentiality crisis during multiple representation “should have a reasonable degree of discretion” in determining how to respond. The lawyer in this situation should consider her duties of impartiality and loyalty to the clients; any express or implied information-sharing agreement among the lawyer and the joint clients; the reasonable expectations of the clients; and the nature of the confidence and the harm that may result if it is disclosed or withheld, as well as whether the situation involves such adversity that the lawyer can no longer effectively represent both clients and must withdraw from representing one or both of them.

Lawyers Handling Multiple Representation Have Special Responsibilities in Settlement Process

 An attorney representing multiple claimants has special responsibilities under Model Rule 1.8(g) when making an aggregate settlement of the clients' claims. The lawyer must disclose information about each client’s claim and share of the proposed settlement, and every client must consent before the settlement may become final. Moreover, Rule 1.8(g) requires the informed consent to be documented “in a writing signed by the client.’’

Rule 1.8(g) is a frequent basis for discipline in personal injury matters and mass tort matters. E.g., In re Ross, 982 N.E.2d 295, 29 Law. Man. Prof. Conduct 156 (Ind. 2013).

According to the American Law Institute, an aggregate settlement is “a settlement of the claims of two or more individual claimants in which the resolution of the claims is interdependent.” The resolution of claims is interdependent when “the defendant's acceptance of the settlement is contingent upon the acceptance by a number or specified percentage of the claimants” or “the value of each claim is not based solely on individual case-by-case facts and negotiations.” Principles of the Law of Aggregate Litigation (ALI 2009). See In re Gatti, 2014 BL 232079, 334 P.3d 448, 30 Law. Man. Prof. Conduct 596 (Or. 2014) (adopting ALI definition and holding that lawyer violated Rules 1.7 and 1.8(g) in accepting and distributing lump-sum settlement that exceeded sum of his clients' individual settlement offers without getting their informed written consent to that method of allocation).

The majority view is that lawyers may not ask jointly represented clients either to waive their right to approve a proposed aggregate settlement or to bind themselves to an aggregate settlement if it is approved by a specified percentage of the other clients. New York City Ethics Op. 2009-6, 25 Law. Man. Prof. Conduct 495.

The ALI takes the much different position that a plaintiff may “be bound by a substantial majority vote of all claimants concerning an aggregate-settlement proposal.” Principles of the Law of Aggregate Litigation §3.17(b).

However, more than a few courts have invalidated advance waivers of the right to approve aggregate settlements. E.g., Hayes v. Eagle-Picher Indus. Inc., 513 F.2d 892 (10th Cir. 1975); In re Hoffman, 883 So. 2d 425, 20 Law. Man. Prof. Conduct 476 (La. 2004); Tax Auth. Inc. v. Jackson Hewitt Inc., 898 A.2d 512, 22 Law. Man. Prof. Conduct 272 (N.J. 2006); Knisley v. City of Jacksonville, 497 N.E.2d 883 (Ill. App. Ct. 1986).