No Advanced Waivers of Aggregate Settlement Rule

grey_business_groupAccording to a formal of the New York City Bar, a lawyer cannot seek a client’s advanced consent to an aggregate settlement. The opinion provides:  “Under Rule 1.8(g), absent court approval, a lawyer may not conclude an aggregate settlement without first obtaining the informed written consent of each settling client.”  It concludes:  “[T]o bind multiple clients jointly represented by the same lawyer, an aggregate settlement requires the informed written consent of each and every client. The requirement of individual informed consent may not be waived by any of the jointly represented clients.”

New York Rule 1.8(g) is virtually identical to Louisiana Rule 1.8(g). Several Louisiana lawyers have experienced disciplinary issues under Rule 1.8(g). Such issues typically arise when a lawyer seeks to conceal from one client what another has received in an aggregate settlement—usually in an effort to avoid settlement squabbles. Given the (sound) reasoning of this opinion, advanced waivers likely are not a viable workaround in Louisiana.

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