Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions has surfaced on the front lines, usually prompted by charges of “abuse” of the class action or charges of ethical misconduct directed at lawyers prosecuting class actions. Professor Miller has noted: “[F]rom 1969 to approximately 1973 or perhaps 1974, antipathy to the class action became palpable .... The defense bar developed numerous litigation techniques to make the class action venture as unattractive as possible, including attacking class counsel's professional conduct.”
This Article examines some of the ethical dilemmas that arise in privately funded class action litigation, typical judicial responses to charges of ethical misconduct, and tactics that, at least to some extent, have been encouraged by such responses.