Appellate Judges

Class Action Legal Ethics are Different Says Creative Eleventh Circuit And Relying On Old 5th Cir. Precedent

Experience teaches that it is counsel for the class representative and not the named parties, who direct and manage these actions. Every experienced federal judge knows that any statements to the contrary is sheer sophistry.

LIT COMMENTARY

The Eleventh Circuit panel get creative to try and rewrite legal ethics rules on the basis that a class action lawsuit is different from other civil cases. The district judge (sitting by designation) who authored the opinion goes off on a lengthy wordsmithed opinion for the panel. In order to try and make the square peg fit the round hole, the 11th Circuit rely on ole friends and precedent at the 5th Circuit, but the one cited ‘precedential’ case, Kincade v. General Tire Rubber Co., 635 F.2d 501 (5th Cir. 1981), falls apart when analyzed.

LIT’s Review

Upon reading Bergman, Class Action Lawyers: Fools for Clients 4 AM. Jur. Trial Advoc. 243, 262-63 (1980), p. 264+, “The Harms Becoming Class Counsel” addressing “Conflicts of Interest, Appearance of Professional Impropriety, Possibility of Forced Withdrawal”, etc., the panel at the 11th Circuit only references a general conflict of interest as opined in Sayler. However, the conflict runs way deeper than that, for example, the appearance of professional impropriety is not even considered nor mentioned in this courts’ opinion.

For way of background, below is an article and expressed opinion by Eric Troutman, a class action ‘Czar’ who explains this case scenario; where 3 law firms are greedily fighting for a huge cash windfall from the Buccaneers for spamming unauthorized faxes in a marketing blast which ultimately ends up with all the class actions imploding – and no-one receives a dime from the NFL company. The crux of the matter is the lawyer switching law firms, the results thereafter and the ethics questions raised.

Despite the class action and settlement failing, the 11th Circuit still issued this opinion – on a legal ethics appeal (fiduciary duty/conflict of interest).

LIT can only assume it was done for two reasons;

(i) in order to issue a warning to the true and injured parties because they filed the civil complaint in state court rather than federal court. That’s right, the opinion is used as a warning for filing a case in state court (described herein) rather than deeming it ‘moot’ and;

An Overview of Judicial Independence from Impeachments
to Court-Packing by Hon. R. David Proctor.

Proctor is not shy in his condemnatory view of State authority.

(ii) the warning was also seen as an opportunity for the 11th Circuit to lay the foundation for an incorrect legal standard in future similar ethics [class action] cases (as this case is published, it is now precedential).

It’s of grave concern when legal ethics and conflicts of interest is widely accepted and known to be an area controlled by the relevant state rules on professional conduct for lawyers, in this case Florida.

Certainly, as the Fifth Circuit opined in In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992), federal laws always apply, but they also determined they are controlled by state ethics rules (which mirror ABA rules) and these are more than not embedded into the local rules as well. See, for example, S.D. Tex. Rules, Appendix A.

In summary, LIT contends Proctor has overstepped his mark and the 2 circuit judges on the panel are culpable as well, and here’s why:

Proctor’s wordsmithed opinion is best summarized by his colleagues from the 3rd Circuit, and maybe that’s why he’s a District Judge trying to do an Appellate Judge’s job, poorly;

“Experience teaches that it is counsel for the class representative and not the named parties, who direct and manage these actions. Every experienced federal judge knows that any statements to the contrary is sheer sophistry*.” Greenfield v. Villager Industries, Inc., 483 F.2d 824, 832 n.9 (3d Cir. 1973) – a distinguished opinion.

* A fallacious argument.

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