Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel in transnational class actions. I argue that the relative size and newness of plaintiff firms to transnational legal practice, particularly in comparison to the legal conglomerates that generally represent multi-national defendants, create some vulnerabilities. More importantly, I analyze how transnational class litigation destabilizes the essential cornerstones of attorneys’ ethical obligations to both clients and the legal system. When attorneys are unmoored from these essential cornerstones, questions about how and when national ethical rules apply become obscured, particularly given existing ambiguities in the rules themselves. Finally, I explain how the politicization of high-profile transnational class litigation can add to the ethical perils already present. Finally, in conclusion, I offer a few observations about lessons for attorneys and regulators to insulate future transnational litigation from the problems and perils that have undermined the search for justice in Chevron.
Catherine A. Rogers, When Bad Guys are Wearing White Hats, 1 Stan. J. Complex Litig. 487 (2013).