Ethical Issues In Litigation Finance 2017
1.0 MCLE Credit: 1.0 Ethics
Cost often weighs as one of the most significant deterrents to pursuing a commercial case through trial for attorneys, firms, and the parties to a lawsuit. Litigation finance has become an increasingly prominent means of helping parties who deserve their day in court bear the financial burdens of litigation. However, the interplay between funding and attorney ethics requirements have engendered spirited debate about how and when third party funding of litigation is appropriate. Issues including whether a funder’s investment impacts an attorney’s duty to use independent professional judgment, avoid conflicts of interest and protect the attorney-client and work product privileges are all central themes in the debate. Recent developments have even led courts to engage in the discussion, with the Northern District of California deciding in January 2017 to require disclosure of funder involvement in class actions.
In this program, participants will learn how to use litigation funding to access the resources they need to pursue meritorious commercial litigation claims. Like any business, law firms must manage their financial risks. While they may see the merits in a case and feel confident in their ability to achieve a victory for the client, they may not have the appetite to take it on a contingency basis. Clients may be equally averse to assuming the high costs of litigation. Even if they have sufficient capital resources, they may not want to bear the financial burden of paying to pursue a case through trial. Appeals can cause even more financial strain. It’s important to understand the ways in which attorneys, law firms and clients can avail themselves of financial assistance from litigation funding companies without running afoul of legal ethics rules.
The discussion will focus on the intersection of litigation finance and the applicable Rules of Professional Responsibility, as well as the basic principles of litigation funding.
James Batson, Esq. | Bentham IMF
NYSBA Member: $75
Commercial and Federal Litigation Section
Committee on Continuing Legal Education