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 thefederal action, was entitled to some of the benefits of theattorney-client relationship, such as the right to privilegedcommunications with class counsel and the prohibition against attemptsby defendants’ counsel to communicate with him, he had no right todirect the course of the litigation, testify at trial, participate indiscovery, or dismiss class counsel. Moreover, petitioner was free tohire his own counsel to appear in the class action if he wished toemploy a traditional attorney-client relationship, although his inputinto the litigation would still have been curtailed, or to opt out ofthe class action altogether if he was unsatisfied with his limitedrole.

Given the above-delineated disparity in the roles,responsibilities, and potential liabilities assumed by a client in thetraditional attorney-client context, as opposed to an absent classmember’s relationship to class counsel, and his/her status as alitigant, coupled with the potential for class counsel to be undulyburdened, even after the end of litigation, by a multitude of requestsfrom absent class members for counsel’s entire file, we reject ablanket extension of Sage Realty‘s presumptive-entitlementright to absent class members, and find that the better practice is torequire absent class members to establish their entitlement to classcounsel’s file on a case-by-case basis. Petitioner, in this matter, hasfailed 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, anamed partner at a securities plaintiff’s law firm, conspired in thepayment of illegal kickbacks to individual class action plaintiffs andobstructed justice by corruptly influencing the administration ofjustice and making false statements in court. As part of his pleaagreement, respondent agreed to, among other things, cooperate in thegovernment’s ongoing investigation and forfeit $7.75 million to thegovernment. ” (Mike Frisch)