Quote:
Originally posted by Atticus Grinch
No, but the certification order was argued to be analogous to a "retention order" between class counsel and the class, taking the place of a retention agreement between an attorney and client and circumscribing the attorney's duty of care. If the retention agreement had said, "You have retained us to bring claims A, B and C," the client could not (the argument goes) say it was the attorney's fiduciary duty to give advice regarding claim D. The court rejected this line of thinking (where, at least, claim D arises from the same set of operative facts), saying that your fiduciary duty extends to getting informed consent from the class rep to waive claim D.
I don't think it's a bad decision, necessarily. But in analogizing to the situation of individual clients, it glosses over the fact that the vast majority of little fuck-ups in communication between attorney and client are resolved with a shrug because the client basically still likes the lawyer, and the lawyer got an opportunity to choose to be in an intimate fiduciary relationship with that individual client --- good attorneys can smell the potential clients who will fuck them over in a heartbeat. In a class of thousands, someone's going to be the asshole. In the class context, decisions will get driven by anticipating the most assholish common denominator. I suppose there's no good solution to this.
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I'm sure you would think that, bitch.
Okay, seriously -- I think the argument was creative but off-base, because the court in ruling on a certification motion is not in a position to assess whether the representation should be expanded to include claims that counsel has not suggested should be included.
I also think that, even if this were a case of individual representation rather than class representation, that the defense of informed consent would be extremely difficult -- and, in all likelihood, not particularly relevant.
Difficult because how do you show that your client knowingly gave up claims that could have increased his damages by 30%? What's the reason for doing this? (I am assuming that the Labor Code provision either did not include more remedies than 17200, or that the remedies of the two claims would not be mutually exclusive. Fucked if I know whether that's right.) Particularly if, as it seems from the press, the claim just wasn't really given full consideration.
Not relevant because if this was a good tactical decision, it's okay regardless of consent -- I believe.
