Cause Lawyers and Class Actions: Principles, Pitfalls, and Community Lawyering for Classes

• Author: Adrienne Lipsey
• Pages: 331-354

331

CAUSE LAWYERS AND CLASS

ACTIONS: PRINCIPLES, PITFALLS,

AND COMMUNITY LAWYERING

FOR CL A SSES

Adrien ne Lipsey

Abstract: Class actions are an exciting tool for cause lawyers

— lawyers who choose their cases to champion particular

ideals and goals. The excitement sur rounding class actions

stems from their potential to create broad-based change, and

to augment access to justice for unempowered people whose

cases would other wise go unlitigated. This enthusi asm should,

however, be tempered by the lessons and principles of cause

lawyering l iterature, which is concerned with avoiding power

imbalances and disconnect between law yers and clients.

Cause lawyer ing literature has produced good and useful

principles to guide law yers in their interact ion with individ-

ual clients. When the se principles — autonomy, collaboration,

the importance of personal relationships, and commun-

ity involvement — are transposed to the class setting, some

troubling issues arise. The structure of class proceedings

makes it diff‌icult to apply these principles at each stage of

class proceedings, from the pre-certif‌icat ion stage through to

settlement. When cause law yers become class counsel they

risk becoming disconnected from their ser vice community.

The issues of power imbala nce, meaningful representation,

and instrumentalizing community members come to the

forefront once more.

Cause lawyer s should be cogni zant of these potential pit-

falls, and may con sider alternative approaches to the manage-

ment of class actions in order to ref‌lect t he principles in cause

lawyering l iterature. These approaches may include tactics

332 The Cana dian Cl ass Action Rev iew

to involve more community members, or even community

groups in steering lit igation, or leveraging the alternative dis -

pute resolution powers of class proceedings.