These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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16-Lawyer's Personal Interests


43-Conflicts of Interest - Miscellaneous

Rule 5.6's limits on lawyers' agreements to limit their practice restrict what lawyers may offer or agree to in settlement agreements, despite "[t]he pressure to find creative solutions to mass tort litigation" (in an opinion presumably critical of the settlement agreement in mass tort litigation against Merck arising from the Vioxx crisis). "[A] lawyer cannot agree to refrain from representing present or future clients against a defendant pursuant to a settlement agreement on behalf of current clients even in the mass tort, global settlement context." "Certainly that situation is presented here where among the lawyer's present clients are (a) individuals who wish to accept the present settlement, (b) individuals who wish to go on the deferred docket and might be perfectly happy to accept the predetermined amount established in the proposed settlement at a later date, and (c) individuals who either now or, after being on the deferred docket a period of time, wish to have their claims individually adjudicated. There may also be a conflict simply among the lawyer's clients in category (c)." "Thus, we conclude that ... the lawyer may not proceed with the settlement on behalf of his present clients unless he resolves this conflict among them by seeking an appropriate waiver, if that is possible, or securing, with the clients' consent, alternative counsel for those whose interests differ from those who wish to pursue that portion of the global settlement which provides predetermined settlement amounts."

Copyright 2000, Thomas E. Spahn