Even when related claims are not aggregated by any formal procedural mechanism, the lawyers involved in the separate lawsuits often coordinate their efforts. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship. As an ethical matter, the central question is whether a lawyer owes ethical duties to a coordinating lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, Professor Erichson suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection, and the problem inheres in the nature of informal aggregation. Written cooperation agreements, however, alleviate some of the risks. As a procedural matter, Professor Erichson considers the virtual representation argument for nonparty preclusion when lawyers have worked together, and concludes that such coordination generally cannot justify binding a nonparty with a judgment. Based on the inadequacy of ethical safeguards and the lack of nonparty preclusion, combined with the decline in litigant autonomy that accompanies counsel coordination, Professor Erichson contends that the rise in informal aggregation suggests the need for more thorough formal mechanisms for aggregating related claims or, at least, greater attention to formalizing counsel coordination through written agreements.
Howard M. Erichson,
Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits,
50 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol50/iss2/1