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Follow-On Class Action to an Individual Suit = Double Jeopardy?

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Paul84

Member
The "attorney client privilege" would probably not prevent the attorney from disclosing client names. Prudence would be enough. There is no business person on earth who would turn over such a list to a stranger. If one asked us, I would give the polite smile indicating our conversation has ended and stand while thanking the crazy person for his time while asking the secretary to show him out. Heck, we don't even disclose to others if a single person is a client without getting a signed release. A list? Wow, look at the time!

But, if they needed a reason, I might go with the ethical duty of confidentiality.
Tranquility, after your reply that "no business person on earth would turn over such a list", I did a google search of "law firm" and "list of our clients". Any reader of this can do the search themselves and see that lots of law firms list specific names for anonymous web surfers--it's a technique of business development. In other industries with clients and confidentiality requirements, such as management consulting, do you think that they, too, refuse to list for whom they've worked?

Even the white-shoe law firms can no longer afford not to attract business by declining to name former client firms. I'm not asking this lawyer for her entire client base, just for one industry, which they did not list on their website among the several that they did name as sectors of expertise.
 

Paul84

Member
To go along with tranquility's post, here is a link you can use to educate yourself a bit on attorney/client privilege:

http://thelawdictionary.org/article/what-is-attorney-client-privilege/

I am surprised, actually, that this has not come up already in one of your other 12 threads, Paul84. ;)
Thanks, Quincy, but some of that seems at odds with notes I took months ago from Trial Evidence, 5th Edition, Thomas A. Mauet and Warren D. Wolfson, 2012, p 263: "Privilege remains when lawyers share documents and clients expressly agree to this arrangement ... 'Client' includes prospective clients, even if they never actually hire an attorney."[emphasis added]
 
What I'm asking about is the potential downside for an individual plaintiff from a concurrent class action. Is there any?
I think you are spinning your wheels in multiple directions for no purpose.

First off, it is impossible to say whether other law suits against your defendant(s), be they one or more individual complaints or one or more class action complaints, will have a positive or negative impact on your individual case. For instance, the existence of the other cases and the things happening within the other cases may convince your defendant(s) to settle with you, and that would presumably be to your benefit. Alternatively, the other cases may convince your defendant that all is lost and that they should close up shop and file bankruptcy, which would presumably not be to your benefit.

Second, why are you talking with class action attorneys about your case? What is your goal there? Do you think that you will be able to convince an attorney to find a representative plaintiff and file a class action and then that you will be able to access information that they generate (eg. their discovery) to help you with your case? I don't think that will happen. That class action attorney represents someone else (ie. the class), not you. Your goals may be similar in that you both want to win against the same defendant, but your goals are not the same because (I assume) you both want money from the defendant and there may be a limited mutually exclusive pot of money.

If you think that your case against the defendant(s) is so good that a class action attorney would be interested in it, and you think you need help with discovery etcetera to win your case, then you should be able to convince an attorney to help you with your own case directly on a contingency/contract basis.

If you are worried about the fact that someone else may look at your case and file a similar case (be it an individual case or a class action case), then get over it. That will either happen or it won't. There's nothing that you can do about it.
 

tranquility

Senior Member
Tranquility, after your reply that "no business person on earth would turn over such a list", I did a google search of "law firm" and "list of our clients". Any reader of this can do the search themselves and see that lots of law firms list specific names for anonymous web surfers--it's a technique of business development. In other industries with clients and confidentiality requirements, such as management consulting, do you think that they, too, refuse to list for whom they've worked?

Even the white-shoe law firms can no longer afford not to attract business by declining to name former client firms. I'm not asking this lawyer for her entire client base, just for one industry, which they did not list on their website among the several that they did name as sectors of expertise.
You did not see a complete list of clients. Also, each client you did see, gave a release to the attorney. Before you make stupid claims, you might want to educate yourself a bit. Start with, https://www.google.com/url?sa=t&source=web&rct=j&ei=xc7fUpreI4SJogTn-YLoBQ&url=http://www.law.ua.edu/pubs/jlp/files/issues_files/vol08/vol08art11.pdf&cd=4&ved=0CC8QFjAD&usg=AFQjCNGMDGn-26ejU3C7RLwu-GLdhLRiZw&sig2=aQvIrKrZPKv10iRquN3_iQ

By the way, you ARE asking for the entire list. Conflict of interest can get a firm tossed from a case after spending tens of thousands of dollars. Without knowing facts, locations and claims, how can a firm know if a former divorce case doesn't blow out representation because that client is a partner in the putative defendant?
 

Mass_Shyster

Senior Member
There are two things at play here. Attorney Client Privilege, and Attorney Client Confidentially.

Attorney Client Privilege is an evidence law that prevents anything that a client told an attorney to be used as evidence. This is similar to spousal privilege and priest penetent privilege. This privilege is only associated with evidence presented in court.

On the other hand, there is client confidentially, which is expressed in the Model Rules of Professional Conduct in Rule 1.6 (Confidentiality of Information).

There are plenty of times that an attorney is working for a client but that client does not want that representation disclosed.

Distributing a list of clients without those clients express consent would be a clear violation of Rule 1.6, and would subject the attorney to discipline, up to and including disbarment.
 

Paul84

Member
There are two things at play here. Attorney Client Privilege, and Attorney Client Confidentially.

Attorney Client Privilege is an evidence law that prevents anything that a client told an attorney to be used as evidence. This is similar to spousal privilege and priest penetent privilege. This privilege is only associated with evidence presented in court.

On the other hand, there is client confidentially, which is expressed in the Model Rules of Professional Conduct in Rule 1.6 (Confidentiality of Information).

There are plenty of times that an attorney is working for a client but that client does not want that representation disclosed.

Distributing a list of clients without those clients express consent would be a clear violation of Rule 1.6, and would subject the attorney to discipline, up to and including disbarment.
Steve, thanks for the clarity of your answer.
 

Paul84

Member
If Not Privileged, Would Info Shared w Parallel Class-Action Attorney be Discoverable

Two follow-up questions:

The interested partner I have been dealing with said her firm has routinely used joint-prosecution agreements in the past to coordinate efforts and to share information and that fronting costs for experts was a routine aspect of their business.

(1) However, if I have my own individual case, and they have a parallel one, could they also technically represent me as a member of the class--so that any info we shared would fall under attorney-client privilege?

(2) If they could not represent me in their class-action case (due to my existing and related cause of action), then I would have no attorney-client privilege, which would put the kibosh on any sharing of information or strategy. Is that correct--that without such privilege, the defendants' attorneys could then discover any communication or documents that passed between me (for my case) and them (for their parallel one)?
 
Two follow-up questions:

The interested partner I have been dealing with said her firm has routinely used joint-prosecution agreements in the past to coordinate efforts and to share information and that fronting costs for experts was a routine aspect of their business.

(1) However, if I have my own individual case, and they have a parallel one, could they also technically represent me as a member of the class--so that any info we shared would fall under attorney-client privilege?

(2) If they could not represent me in their class-action case (due to my existing and related cause of action), then I would have no attorney-client privilege, which would put the kibosh on any sharing of information or strategy. Is that correct--that without such privilege, the defendants' attorneys could then discover any communication or documents that passed between me (for my case) and them (for their parallel one)?
I find your questions difficult to answer because I don't understand why you are asking them, but here goes anyway...

(1) You cannot sue the same company for the same thing twice (can you say res judicata). I don't think it matters whether or not you want to sue them once as an individual plaintiff and once as a representative plaintiff in a class action, nor whether or not the two cases would be occurring simultaneously or sequentially.

(2) If you don't trust a class action attorney that "routinely used joint-prosecution agreements in the past to coordinate efforts and to share information" because you (rightly so in my opinion) believe that there may come a time when they will do something that might better their class action case in some way that is at the expense of or detriment to your individual case, then don't enter into such an agreement with them. Maybe you could get an attorney to represent you in your negotiations with the class action attorney so that you create a joint-prosecution agreement that satisfies your concerns. :D

I still don't understand why you are talking with a class action attorney. If your personal individual case is so good that a class action attorney might want to file a similar case, then your personal individual case should be good enough to convince an attorney to help you with your own personal individual case. The idea of trying to get someone else to file a similar case (class action or otherwise) so that you can benefit from the discovery that they do without any possible untoward consequence to your personal individual case seems a little convoluted to me personally.
 
Two follow-up questions:

The interested partner I have been dealing with said her firm has routinely used joint-prosecution agreements in the past to coordinate efforts and to share information and that fronting costs for experts was a routine aspect of their business.

(2) If they could not represent me in their class-action case (due to my existing and related cause of action), then I would have no attorney-client privilege, which would put the kibosh on any sharing of information or strategy. Is that correct--that without such privilege, the defendants' attorneys could then discover any communication or documents that passed between me (for my case) and them (for their parallel one)?
Two follow-up questions:

Sorry, to me your goals are so convoluted that it's really difficult for me to understand what you want - or what you are afraid of. I guess I misunderstood your fear. On re-reading this, it appears that you are afraid that your (common) defendant might seek to discover documents sent between you and the class action plaintiff's attorney that the (common) defendant might not otherwise have access to via discovery.

I think anything that you send to the attorney (who does not represent you), and that they send to you, is subject to discovery by the defendant. But I don't see why it wouldn't have already been anyway.

You should ask this question to the class action attorney who "has routinely used joint-prosecution agreements in the past to coordinate efforts and to share information". But basically, like I said, if you don't trust that the "joint-prosecution agreement" will be to your benefit, and you don't trust the attorney who drafted it to be 100% on your side (which IMHO you shouldn't), then either don't sign it or get an attorney to help you with it. The bottom line is that the whole idea of trying to convince a class action attorney to file suit against your defendant so that they will share their discovery with you seems really convoluted to me.
 

quincy

Senior Member
I find your questions difficult to answer because I don't understand why you are asking them ...
Here are Paul84's other questions that provide the history behind his questions here (and, with luck, he will confine all other questions to this thread and not start another one):

5-15-2013 https://forum.freeadvice.com/civil-litigation-46/questions-about-reply-briefs-other-motion-practice-596494.html
8-17-2013 https://forum.freeadvice.com/civil-litigation-46/reading-law-programs-599218.html
9-24-2013 https://forum.freeadvice.com/civil-litigation-46/courtesy-visit-courthouse-600352.html
5-16-2013 https://forum.freeadvice.com/civil-litigation-46/verified-complaint-sufficient-withstand-summary-judgment-frcp-12b-mtd-596613.html
5-25-2013 https://forum.freeadvice.com/civil-litigation-46/diversity-citizenship-choice-law-pro-se-fee-recovery-596918.html
2-13-2013 https://forum.freeadvice.com/civil-litigation-46/does-u-s-d-j-handle-all-dispositive-motions-does-u-s-m-j-do-some-591182.html
2-13-2013 https://forum.freeadvice.com/civil-litigation-46/free-cheap-equivalents-westlaw-lexisnexis-pacer-looking-up-cases-591190.html
4-11-2013 https://forum.freeadvice.com/civil-litigation-46/can-plaintiff-pro-se-mail-amended-complaint-opposing-counsel-594904.html
2-14-2013 https://forum.freeadvice.com/civil-litigation-46/time-frame-appeal-one-cause-if-others-ongoing-591218.html
2-10-2013 https://forum.freeadvice.com/civil-litigation-46/clarifying-intent-after-handwritten-endorsed-order-grant-more-time-591057.html
2-10-2013 https://forum.freeadvice.com/civil-litigation-46/can-lawyer-authorized-company-waive-process-say-he-cannot-accept-process-591038.html

If nothing else, this history demonstrates nicely why people hire attorneys. ;) :)
 
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Paul84

Member
Two follow-up questions:

Sorry, to me your goals are so convoluted that it's really difficult for me to understand what you want - or what you are afraid of. I guess I misunderstood your fear. On re-reading this, it appears that you are afraid that your (common) defendant might seek to discover documents sent between you and the class action plaintiff's attorney that the (common) defendant might not otherwise have access to via discovery.

I think anything that you send to the attorney (who does not represent you), and that they send to you, is subject to discovery by the defendant. But I don't see why it wouldn't have already been anyway.

You should ask this question to the class action attorney who "has routinely used joint-prosecution agreements in the past to coordinate efforts and to share information". But basically, like I said, if you don't trust that the "joint-prosecution agreement" will be to your benefit, and you don't trust the attorney who drafted it to be 100% on your side (which IMHO you shouldn't), then either don't sign it or get an attorney to help you with it. The bottom line is that the whole idea of trying to convince a class action attorney to file suit against your defendant so that they will share their discovery with you seems really convoluted to me.
Mark (and Quincy), thank you very much for your responses, which are really helpful.

As I believe an earlier post in this thread mentioned, I cannot prevent one or several class-action firms from piling on to my pro-se lawsuit once it becomes public, so I might as well try to influence the choice of the firm that might lead such an effort if the eventuality arises. The class-action cause of action is actually less complex than one of my other, completely unrelated claims in terms of established precedents, while several of my other claims involve equally thorny issues of international procedural and substantive law.

Most good attorneys specialize and are unlikely to be well versed in all or even several of my unrelated claims. While undoubtedly they, and some of the posters here, could run rings around me in terms of legal procedure, I can hold my own in crafting legal arguments and have a better understanding of the facts--both explicit and tacit--to winning my case. Even though the nature of most, or all, of my claims should enable me to recoup the legal fees (or share much of what some here would call the miniscule expected value of my (1) chance of winning multiplied by (2) any award or settlement), I am not willing to front (or pay) those costs.

(Hopefully) final question: would I have free access to any discovery conducted by a law firm that is not representing me but is engaged in a parallel action for class plaintiffs, to which you, Mark, said I could not belong due to my own related suit? Or for most of the stuff that work-product privilege does not protect such as direct quotes in transcripts or notes, could they require me to pay for it or to share in the cost of e.g. witness fees at trial etc?
 
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Paul84

Member
Will assignment of a new presiding judge delay a ruling on MTD?

Over eight months ago, defendants and I fully briefed their motion to dismiss (MTD) my pro-se, amended complaint. Today I received a notice that the court has reassigned the case to a new presiding judge from the previous judge, who has been on senior status for several years. Will this reassignment further slow down the court's ruling on the MTD?

So far, I've dealt only with the magistrate but assume that the presiding judge has final say on dispositive motions like an MTD. If another few months drag on with nothing happening, would it be improper at that time to file a motion to request a start of discovery and an initial case-management plan?
 

Paul84

Member
Objection to Magistrate's Report & Recommendation

Exactly a year to the day after the filing of the defendants' motion to dismiss, and one day after I filed a letter-brief asking for discovery to start, despite the pending motion, a magistrate judge issued a 105-page report & recommendation ("R&R") dismissing all but one of my claims. As you might expect, I found the R&R biased: it contained material errors, omitted material facts and mischaracterized others, while adopting a skewed interpretation of various legal issues, using tortured logic. Virtually the entire text and language of the R&R to dismiss one of the claims could even have come straight from the defendants.

I have two weeks to file an objection.

Question: What's the likelihood of the case's new presiding judge, appointed less than a year ago to the bench, of over-ruling a senior magistrate's R&R: close to zero?
 
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