Florida Rule of Professional Conduct 4-1.7(a)(2) states in pertinent part that “a lawyer shall not represent a client if (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Under Rule 4-1.7(b), a lawyer may represent a client even though there is a conflict if “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; . . . and each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.”
In most class action contexts, however, each client cannot give informed consent because many of the “clients” are absent class members who will never even meet the attorney who represents the class. This presents a dilemma because class representatives should not be permitted to give “informed consent” on behalf of the class. Davis v. Kraft Foods North American, 2006 WL 237512 *13 (E.D. Pa. Jan. 31, 2006) (“I do not believe [the class representative] can waive any conflict on the class’s behalf.”); In re Terazosin Hydrochloride Antitrust Litigation, 223 F.R.D. 666, 677 (S.D. Fla. 2004) (stating that “none of the parties have cited to any case law holding that some putative class members can waive actual or potential Rule 23(a)(4) conflicts” and concluding that “[i]t is doubtful that these representative members can waive any actual or potential conflicts for the remaining approximately 1,947 members of the defined proposed class”).
What's the solution? The obligation falls on the court to ensure that the interests of the absent class members are protected. See e.g. Palumbo v. Tele-Communications, Inc., 157 F.R.D. 129, 133 (D.C. 1994) (“In the class action context, the Court has an obligation to closely scrutinize the qualifications of counsel to assure that all interests, including those of as yet unnamed plaintiffs are adequately represented.”). There are three options.
One is to require the class representatives to obtain informed waivers from all unnamed class members. This is often impracticable. Yet another is to replace class counsel.
Still a third is to deny certification. Cf. Davis, 2006 WL 237512 at *6 (denying class certification where a conflict caused class counsel to abandon arguments a conflict-free counsel would have made).
In any event, a court should not permit class counsel to represent the class where a waiver via informed consent cannot properly be requested. According to the comments to Rule 4-1.7, for example, a lawyer cannot request a waiver when “a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.”