Friday, December 28, 2007

Absent Class Member Not Entitled To Counsel's Files

The New York Appellate Division for the First Judicial Department held that an absent class action client does not have the blanket right to obtain access to the files of class counsel. Rather, such entitlement must be established on a case-by-case basis:

"In sum, while petitioner herein, as an absent class member in the federal action, was entitled to some of the benefits of the attorney-client relationship, such as the right to privileged communications with class counsel and the prohibition against attempts by defendants' counsel to communicate with him, he had no right to direct the course of the litigation, testify at trial, participate in discovery, or dismiss class counsel. Moreover, petitioner was free to hire his own counsel to appear in the class action if he wished to employ a traditional attorney-client relationship, although his input into the litigation would still have been curtailed, or to opt out of the class action altogether if he was unsatisfied with his limited role.

Given the above-delineated disparity in the roles, responsibilities, and potential liabilities assumed by a client in the traditional attorney-client context, as opposed to an absent class member's relationship to class counsel, and his/her status as a litigant, coupled with the potential for class counsel to be unduly burdened, even after the end of litigation, by a multitude of requests from absent class members for counsel's entire file, we reject a blanket extension of Sage Realty's presumptive-entitlement right to absent class members, and find that the better practice is to require absent class members to establish their entitlement to class counsel's file on a case-by-case basis. Petitioner, in this matter, has failed to shoulder that burden."

In an unrelated matter, the court accepted the resignation and struck from its rolls an attorney from the same firm as a result of his criminal conviction:

"The basis of this conviction was that, for over 20 years, respondent, a named partner at a securities plaintiff's law firm, conspired in the payment of illegal kickbacks to individual class action plaintiffs and obstructed justice by corruptly influencing the administration of justice and making false statements in court. As part of his plea agreement, respondent agreed to, among other things, cooperate in the government's ongoing investigation and forfeit $7.75 million to the government. " (Mike Frisch)

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