122 N.J.L.J. 764
September 22, 1988
Offers to Multiple Plaintiffs
The Inquirer, an attorney appearing for multiple plaintiffs in
two separate suits, asks "whether or not it is ethical for a
defendant to make 'blanket offers' to multiple plaintiffs."
In the first suit, the attorney represented four passengers in an automobile who instituted suit against the driver of the car in which they were riding. The Inquirer states that there was no evidence, nor even an allegation, of any fact that would raise a potential conflict of interest among the various plaintiffs, although they did have different injuries and varying degrees of strength of their liability claims against the driver because their injuries occurred at different times during the course of the happening of the accident for which their driver was alleged to be partly responsible. It appears that on the eve of trial, the defendant's insurance carrier made offers of different amounts for each plaintiff passenger, which offers were conditioned, however, that "... the offer was all or nothing at all, either all the plaintiffs had to accept the offer or there was no offer." It further appears that the Inquirer contacted his clients, and that three of the four plaintiffs agreed to accept the offer; the fourth did not.
B) If it is ethically appropriate for a
plaintiff's attorney to, in fact, represent
multiple passengers who have no factual or
legal conflict of interest, then is it ethical
for the defendant to make offers that are tied
together and thereby place the plaintiff's
attorney potentially, and in my particular
case, in a conflict of interest situation?
The question does not involve a matter of ethics whether such offer is made by the insurance carrier (who would not be governed by our Rules of Professional Conduct) or by the defendant's attorney, if the carrier's "tie-in" offer is transmitted by him to the plaintiffs' attorney.
This offer was communicated to the plaintiffs
in accordance with the Court's instructions;
however, there was reluctance on the part of a
fairly substantial number of plaintiffs to
accept the settlement. However, when it was
explained that if the settlement offer was not
accepted, perhaps a hundred of their
co-workers might have their claims dismissed,
all but a very inconsequential number of
plaintiffs accepted this settlement, and a
separate settlement conference was held to
resolve the claims of those few plaintiffs who
had not accepted the settlement proposal.
He, therefore, raises the following questions:
A) Is it ethically appropriate for an attorney to represent multiple plaintiffs in a chemical exposure case where they have no apparent conflict of interest between them, but where one can be created de facto by the defendants' attorneys by means of a "blanket offer" in which the defendants state that either the entire group accepts the offer, or a substantial part of the offer will be withdrawn, and a substantial number of plaintiffs will be dismissed?
We see no ethical problem involved in representing multiple plaintiffs in a chemical exposure case, or in any other case, where there is no apparent conflict of interest among the plaintiffs themselves. The conflict does not arise until the blanket offer is made, and in that event RPC 1.8(g) governs.
B) If it is ethical for an attorney to
represent multiple plaintiffs in a chemical
exposure case, (which I believe it is), does
it then become unethical for that attorney to
continue to do so when it appears that some of
the plaintiffs have potential Statute of
Limitations problems, whereas others do not?
We see no ethical problem involved. The question of the Statute of Limitations is a matter of law and, presumably, would be dealt with by the trial judge during the course of the proceedings.
The Inquirer asks further:
C) If it is ethical to continue to represent the plaintiffs in such a situation, (which I believe it is), does it then become unethical for the defendants to make a "blanket offer" stating that if the entire group of plaintiffs does not accept the offer, than [sic] a substantial portion of the plaintiffs will receive no offer, and in fact, may have their cases dismissed? Such a circumstance, in my opinion, clearly gives the defendants the unilateral ability to place the plaintiffs' attorney in a conflict of interest situation where he is now called upon, in essence, to trade-off the best interest of some of the plaintiffs for the benefit of the whole group.
The matter of the ethics of the defendants' insurance carriers is not one to be considered by this Committee. If the question relates to the blanket offer being transmitted by the attorneys for the defendants, we still perceive no ethical involvement by the defendants' attorneys, who, pursuant to their clients' valid instructions, tendered the blanket offer. It is those attorneys' obligation in representing their clients to make any legal offer they direct them to make.