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Select Ethical Issues Present in Litigation Funding

The following article was contributed by John J. Hanley, Partner at Rimon Law Litigation financing is on the rise in the United States and provides some claimants a valuable means for paying the costs of pursuing a legal claim. Lawyer involvement in litigation financing transactions raises many ethical issues for a lawyer such as competence, duty of loyalty, the potential waiver of privilege and interference by a third party, to name a few. Competence The first rule for lawyers under the New York Rules of Professional Conduct (the “NY RPC”) is competence.[1]  Lawyers and law firms should tread carefully when considering undertaking client engagements in a subject area in which they do not have the requisite knowledge and skill to provide competent representation of their clients. Official Comment 1 to Rule 1.1 provides in part that factors relevant to determining whether a lawyer has the requisite knowledge and skill in a matter include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the filed in question, and the preparation the lawyer is able to give the matter.[2] This does not mean that lawyers cannot deal with matters in which they are initially unfamiliar.  Indeed, the American Bar Association points out in comments to Rule 1.1 that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. The analysis of precedent  . . . and legal drafting are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”[3] According to the New York City Bar Report to the President by the New York City Bar Association Working Group on Litigation Funding: “[a] lawyer whose client seeks third party funding should determine at the outset whether he or she has the transactional experience and sophistication required to negotiate a beneficial agreement with the funder or whether a specialist in the field should be involved.”[4] Competence in litigation finance includes familiarity with various litigation financing structures and privileges against disclosure, among others.[5]  For example, the structure may involve different types of collateral, different means of financing legal fees and expenses, the manner in which funding is disbursed and the return structure of the financing.  A lawyer concentrating her or his practice on litigation funding may also be better able to determine “market” terms of the financing. Duty of Loyalty and the Lawyer’s Financial Interests Of course, the lawyer is the client’s fiduciary and agent who owes his or her client undivided loyalty and is forbidden from putting her interest above that of the client. The New York State Bar Association, Committee on Professional Ethics reminds lawyers that their financial interests must not interfere with the representation of the client.[6] Ordinarily, there is nothing adverse to a client about a lawyer getting paid for legal services[7] but in a litigation funding transaction the lawyer could have a personal interest in respect of the transaction. For example, the litigation funding agreement may facilitate payment of a portion of the lawyer’s fees or ensure certain expenses borne by the lawyer will be repaid.[8] The American Bar Association posits that if a lawyer has a relationship with a litigation funder that creates a financial interest for the lawyer . . . it may interfere with the lawyer’s obligation to provide impartial, unbiased advice to the client (the “ABA Report”)[9]. The ABA Report goes on to say that a lawyer with a long-term history of working with a particular funder may have an interest in keeping the funder content which would create a conflict even in the absence of an explicit agreement. The NY RPC, specifically Rule 1.7(a)(2), like the Model Rules of Professional Conduct, prohibits a lawyer from representing a client if “there is significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, property or other interest.” Additionally, Rule 5.4 of the NY RPC, and its analogous provisions in other jurisdictions, requires that a lawyer maintain independence[10].  Consequently, such lawyer, representing a client in a matter for which litigation funding is sought, in general may be able to represent the client with respect to the litigation funding agreement but should disclose the lawyer’s relationship with the funder and receive the client’s informed written consent. Communication and Confidentiality Rule 1.4 of the NYRP Conduct requires a lawyer to communicate promptly, and provide complete information, to the client regarding the matter, and to reasonably consult with the client about the means to achieve the client’s objectives.[11] Reputable litigation funders are usually careful to provide in the litigation finance documents that the funder will not be involved in discussions between the lawyer and client regarding the matter, and that the funder will not direct or control the litigation. In certain circumstances an inexperienced lawyer may consider involving the funder in discussions about case strategy, but caution is in order. If a party other than client and the attorney is involved in communications involving legal issues or the case, the attorney-client privilege and confidentiality of communications is likely breached and the attorney may be guilty of legal malpractice. Indeed, Rule 1.6 of the NYRPC requires that a lawyer not knowingly reveal confidential information, or use that information to the disadvantage of the client or advantage of the lawyer or a third person, subject to certain exceptions.[12] Conclusion An attorney who represents a client in a matter that is to be funded pursuant to a litigation funding agreement should consider the ethical implications discussed in this Insight, among others, before representing the client in the funding agreement. Counsel would avoid all of the ethical considerations that may arise by referring the client to an outside attorney experienced in litigation finance.
[1] N.Y. Rules of Prof’l Conduct R.1.1.  The California Rules of Professional conduct and the American Bar Association Model Rules of Professional Conduct (“MRPC”) also make this the number one rule.  Indeed, all fifty states and the District of Columbia have adopted legal ethics rules based at least in part on the MRPC. [2] N.Y. Rules of Prof’l Conduct R.1.1, Comment [1]. [3] Available here ABA Comment to Rule 1.1 [4] Report to the President by the New York City Bar Association Working Group on Litigation Funding (February 28, 2020). [5] Others includes, without limitation champerty, maintenance, barratry, usury and required disclosures. [6] N.Y. Comm. on Prof’l Ethics, Formal Op. 769 (November 4, 2003). [7] The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2020-204. [8] Id. At 3. [9] American Bar Association, Informational Report to the House of Delegates Commission on Ethics 20/20. [10] N.Y. Rules of Prof’l Conduct R.5.4. [11] N.Y. Rules of Prof’l Conduct R.1.4(a). [12] N.Y. Rules of Prof’l Conduct R.1.6(a). See also the American Bar Association’s Model Rule 1.6.

Pre-Settlement Funding Conditions

It’s not unusual for plaintiffs to need extra money before their case is adjudicated. An accident victim, for example, can’t wait years to pay medical bills or replace their car. Pre-settlement funding can help those who find themselves needing an influx of cash as they await the outcome of their lawsuit.

Legal Desire explains the conditions that must be met in order to secure pre-settlement funding, and how repayment works. If your case is successful, you’ll pay a portion of the settlement or award plus attorney fees. If your case is not successful—the non-recourse structure of the funding means you don’t have to repay the funded money.

In order to get pre-settlement funding, you need a meritorious case. The lawsuit must be filed with the court and be in progress. Personal injury claims are the most common case to qualify for pre-settlement funding.

You must also have legal representation in place to get pre-settlement funding. Funders will often work with lawyers when crafting a funding agreement. However, not all case types are eligible for pre-settlement funding. But many, mostly relating to personal injury issues, are. These include:

  • Auto collisions and accidents
  • Pet-related injuries
  • Defective products, including medical equipment
  • Medical malpractice and nursing negligence
  • Slip and falls

Once approved for pre-settlement funding, money can be deployed as quickly as one business day. Anyone interested in pre-settlement funding should discuss it with their attorney before approaching a funder.

Legal-Bay Lawsuit Funding Announces Renewed Focus on Wrongful Termination Cases

Legal-Bay, the Pre-Settlement Funding Company, reports increased funding for victims of wrongful termination. In light of a recent lawsuit brought against popular gaming company Activision Blizzard, Legal-Bay is expanding their underwriting department to handle the increase in applications being filed by women. California Department of Fair Employment and Housing (DFEH) has filed suit against Activision Blizzard, alleging sexual harassment and gender discrimination against female employees. Activision is certainly not the first gaming company to be accused of fostering a "frat boy culture" among its employees; a mostly masculine atmosphere that's been excused considering most products are developed for their main consumer base of male gamers. However, the demographic is no longer solely male. More than 4-in-10 gamers in the United States are female, a stat one would think would be reflected in gaming companies' hiring practices. But in 2020, women comprised only 16% of all executive positions within the industry, a likely contributor to several recent examples of discriminatory behavior against women. Chris Janish, CEO, commented on the situation, "The face of gaming has undergone a massive shift in recent years. Almost half of all gamers are now female, yet it's been an uphill climb for women who want to make a career within the industry. Plaintiffs who have lost their jobs due to gender-related discrimination can reach out now for monetary assistance in order to compensate lost pay, emotional stress, punitive damages, and legal fees." If you're a plaintiff in an ongoing lawsuit and require an immediate cash advance from your anticipated settlement, please visit our website HERE or call 877.571.0405. Legal-Bay's settlement loan programs can offer immediate cash in advance of a plaintiff's anticipated monetary award. The non-recourse lawsuit loans are risk-free, as the money does not need to be repaid should the recipient lose their case. Therefore, the law suit loans aren't really a loan, but rather a cash advance. If you require an immediate cash advance loan settlement from your wrongful termination, whistleblower, or gender discrimination lawsuit, please visit the company's website HERE or call 877.571.0405 where skilled agents are standing by to hear about your case.

Augusta Ventures brings in SYZ Capital’s Uncorrelated Strategies lead as new Chief Investment Officer following earlier £250m fund raising

Augusta Ventures, a specialist asset manager focussed on the litigation and disputes funding sector, has appointed SYZ Capital’s current Uncorrelated Strategies lead – Gian Kull – as its new Chief Investment Officer. The move follows Augusta’s closure of its third pool of funding in June 2021 which brought the firm’s AuM to £585m.  This enabled the firm to continue to fund an unprecedented pipeline of opportunities in high value litigation and dispute scenarios. Gian Kull, currently based in Switzerland, managed Legal Assets platforms as a part of SYZ Capital’s Uncorrelated Strategies. He began his career at Merrill Lynch and has since focussed on investing in complex special situations and legal assets on behalf of firms including Multiplicity Partners, Brigade Capital and JANA Partners.  Gian will be based in Augusta’s London office and will report to Chief Executive Louis Young and Board Chairman Hitesh Patel. Louis Young, Chief Executive Officer of Augusta Ventures, said: “We are delighted to attract someone with Gian’s experience to Augusta Ventures.  This comes on the back of our new £250m capital raising earlier this year as Augusta builds on its expansion in capital resources to meet the increased demand for legal related finance across all sectors and geographies. We have never seen so many strong opportunities. Gian’s investing background and wide skillset will make him a huge asset to the firm as our Chief Investment Officer.” Gian Kull, upon welcoming his appointment to Augusta Ventures, said: “Augusta has deep expertise in the litigation funding market, and I am excited about working with the talented team at Augusta and its institutional investors to offer creative funding and risk solutions to Claimants seeking access to justice.”

Burford Capital earmarks $100 million in expansion of award-winning economic incentive to promote diversity in law, now to include racial diversity

Burford Capital, the leading global finance and asset management firm focused on law, today announces the launch of phase two of The Equity Project, its groundbreaking initiative designed to increase diversity in the business of law.

As part of this expansion, Burford is earmarking a further $100 million to The Equity Project and broadening its mission to address both female and racially diverse lawyers who have been historically underrepresented in the business of law, especially in leadership and partnership positions. In earmarking capital through The Equity Project, Burford provides these lawyers an edge as they pursue leadership positions in significant commercial litigations and arbitrations and eases pathways towards origination and client relationship credit. Legal departments committed to diversity can use Equity Project funding to further incentivize their firms to appoint diverse teams to represent them, and law firms and companies alike can use The Equity Project as part of their ongoing ESG efforts.

In a further expansion of its commitment to providing an economic incentive for change, when Equity Project-funded matters resolve and generate their expected returns, Burford will contribute on its client’s behalf a portion of its profits to organizations that promote lawyer development for female and racially diverse lawyers.

Burford first launched The Equity Project in October 2018 with $50 million in legal finance capital earmarked for matters led by women. Having committed well in excess of that amount to Equity Project matters as of December 31, 2020, Burford has now broadened the initiative to include racial diversity and thus address a deficit in representation that is even more acute than the gender gap. Burford has already made a multi-million commitment under the newly expanded Equity Project to a matter led by a female in-house lawyer and a racially diverse outside litigation team for a Fortune 100 company.

In the last few years, many general counsel have publicly called on their law firms to appoint more diverse teams to represent them, including 170 GCs who in 2019 signed an open letter advising law firms that diversity will influence which firms they hire. According to independent research commissioned by Burford in 2020:

  • 52% of GCs say they are entirely unaware of how origination credit is awarded when they hire a law firm
  • 48% of GCs and senior in-house lawyers say their companies have asked a firm to put a woman on a litigation or arbitration team
  • 55% of GCs say knowing about The Equity Project will change how they think about future affirmative litigation

The Equity Project is a global initiative led by Burford’s Aviva Will, co-COO and formerly a senior litigation manager and Assistant General Counsel at Time Warner Inc. and a senior litigator at Cravath, Swaine & Moore.

Ms. Will states: “We review thousands of commercial disputes annually and vanishingly few are led by female and racially diverse lawyers. We at Burford are providing tangible means to change this so that these groups can have easier pathways to generate additional business.

There is no question that diversity is good for business. The question is, how can we promote and incentivize faster change in commercial litigation and arbitration, both of which have been particularly resistant to it? Our goal is not just to work to bridge these gaps but to do so quickly. To achieve this, we must change the economics.”

Christopher Bogart, CEO of Burford, states: “The diversity problem in law desperately needs innovative economic levers to solve the problem and The Equity Project is an example of Burford Capital putting this plan into action. Burford’s work will not only help to increase diversity at law firms but will also augment companies’ and law firms’ existing ESG initiatives. We are eager to continue our work with our law firm and corporate clients to bolster their progress in their own diversity initiatives.”

The earmarked pool of capital will be reserved for commercial litigation and arbitration in which female or racially diverse lawyers are first or second chair; a female or racially diverse lawyer earns origination credit or is the client relationship manager; clients are represented by firms that are owned by women or racially diverse lawyers; or a female or racially diverse lawyer serves as plaintiffs’ lead counsel or chairs the plaintiffs’ steering committee.

Burford has also expanded its cadre of Equity Project Champions, corporate and law firm leaders who will support and spread awareness of the initiative. The expanded list, which is currently in formation, includes the following returning and new* Champions:

  • Alexandra Rose, Partner, Clayton Utz
  • Amy Frey, Partner, King & Spalding
  • Brenda Horrigan, International Arbitrator
  • Caren Ulrich Stacy, Founder & CEO, Diversity Lab
  • Carolyn Lamm, Partner, White & Case
  • *Daniel Winterfeldt MBE QC (Hon), Founder & Chair Interlaw Diversity Forum, Managing Director & General Counsel – EMEA And Asia, Jefferies
  • Faith Gay, Founding Partner, Selendy & Gay
  • Jonathan E. Goldin, Chief Operating Officer and General Counsel, Teneo Capital
  • The Honorable Katherine B. Forrest, Partner, Cravath, Swaine & Moore
  • *Keith J. Harrison, Partner and Co-Chair, Litigation, Crowell & Moring
  • Maria Ginzburg, Partner, Selendy & Gay
  • *Maria Eugenia Ramirez, Partner, Hogan Lovells
  • Megan E. Jones, Partner, Hausfeld
  • Mylan Denerstein, Co-Chair, Public Policy Practice Group, Gibson Dunn & Crutcher
  • Dr. Nadine Herrmann, Managing Partner and Chair, EU and German Competition Law Practice, Quinn Emanuel
  • Nicole D. Galli, Founder, Women Owned Law; Managing Member, ND Galli Law LLC
  • Noradèle Radjai, Partner, Lalive
  • Roberta D. Liebenberg, Senior Partner, Fine, Kaplan & Black
  • *Rufus Caine III, Co-Founder & Partner, DEI Strategic Advisory Firm
  • Sophie Nappert, International Arbitrator; Co-Founder, ArbTech
  • Stephanie l. Carman, Shareholder, GrayRobinson
  • Sue Prevezer QC, International Arbitrator, Mediator and Consultant, Brick Court Chambers
  • Tara Lee, Partner, White & Case
  • *Veta T. Richardson, President & CEO, Association of Corporate Counsel
  • Wendy J. Miles QC, Barrister, Twenty Essex

In addition to committing capital, The Equity Project will continue to organize events and generate thought leadership that draw attention to diversity in law. Since first announced, Burford has organized 16 events, ranging from business development bootcamps for emerging female litigators to panels with leading in-house lawyers. Burford has also partnered with organizations such as the InterLaw Diversity Forum and Equal Representation in Arbitration, and sponsored events devoted to changing outcomes for female and racially diverse lawyers. Burford will continue this work, aimed at bringing together in-house lawyers, law firm leaders, rainmakers and emerging legal industry leaders in furtherance of this cause. Burford will also continue to study outcomes and efficiencies in matters financed through The Equity Project. 

About Burford Capital

Burford Capital is the leading global finance and asset management firm focused on law. Its businesses include litigation finance and risk managementasset recovery and a wide range of legal finance and advisory activities. Burford is publicly traded on the New York Stock Exchange (NYSE: BUR) and the London Stock Exchange (LSE: BUR), and it works with companies and law firms around the world from its principal offices in New York, London, Chicago, Washington, Singapore and Sydney.

For more information, please visit www.burfordcapital.com.

Multiple Class Action Lawyers Face Allegations of Fraud

Two barristers and two solicitors are under fire for allegedly misappropriating at least $19 million in fees relating to the Banksia class action. Barristers Norman O’Bryan and Michael Symons will be permanently banned from practicing law. Solicitors Anthony Zita and Alex Elliot will be required to show cause for why they too should not be banned from the practice of law. Financial Review reports that the judgement against the men finalizes a lengthy class action into Banksia’s collapse in 2012. Investors lost at least $660 million in the collapse. The case settled in 2018 for $64 million—but the Victorian Court of Appeal declined to allow legal and funder fees of over $18 million, after a claimant challenged what it deemed ‘excessive’ costs. Increasingly, judges are speaking out against funders and legal firms for taking what they claim are inappropriately large cuts of settlements and awards. AG Michaelia Cash applauded the judgement, affirming it as a step toward stopping lawyers from “gouging” class action claimants. While reasonable people can disagree on percentages, the behavior of these lawyers allegedly included gross acts of deception—including intimidating a group member, backdating invoices, and intentionally misleading a costs consultant. Elderly investors, at least 16,000 of them, endured significant financial losses. But does the Banksia judgement, as some suggest, reflect a need for increased regulation? Surely the misdeeds of some don’t impact the honesty of others?  Assistant Minister to the AG, Amanda Stoker, takes a profoundly negative view of funders—accusing them of “gambling” via the legal system. Suggested reforms include a 30% cap on payouts for funders and lawyers, using an opt-in model for class actions, and giving judges the power to accept or reject funding agreements. Not surprisingly, funders and many lawyers responded negatively to these proposed reforms—stating that they aren’t taking the realities of funding into consideration.

Business Interruption Payouts Still in Question as Appeal Looms

As thousands of small businesses await COVID-related insurance payouts, insurers maintain that their policies were never meant to cover global pandemics. Whether or not claimants get their due will depend on an upcoming appeal. Sydney Morning Herald explains that an upcoming second round in the case will focus on specific policy wording and intent. The outcome here will be an essential part of determining payouts. In eight of nine recent test cases, Justice Jayne Jagot ruled in favor of insurers, affirming key aspects of their arguments. The judgement caused IAG shares to go up 4.2%. However, lawyers on behalf of business owners are set to appeal, which is expected to begin next month. Law firms involved in the case, Gordon Legal, and Berrill & Watson, stated that there are still questions to be answered—such as whether some claimants had a legitimate claim for losses caused by the government’s efforts to contain the virus. A final decision is, one lawyer explained, a long way off. The class actions are expected to resume in February 2022. Omni Bridgeway is funding several class actions against insurers accused of holding back business interruption payouts. Multiple insurers have disputed business interruption claims on a large scale—including IAG, Suncorp, QBE, and Insurance Australia Group.

Delhi Startup LegalPay Offers Opportunity for Claimants and Investors

Bringing a legal case in India is expensive, and can take years from start to finish. This often means the pursuit of justice is out of reach for citizens of average means. Kundan Shahi, who worked in insurance, knew there was a solution. Your Story details that Shahi saw a connection between what insurers did and how legal cases could be funded by third-parties. His initial idea was to set up Advok8—an insurance company dedicated to funding cases. But the legal setup required to start an insurance company was expensive, complicated, and full of regulatory hoops to leap through. In 2019, Shahi set up LegalPay as a legal services company. Cases being considered for funding are vetted by in-house lawyers using a variety of criteria. Cases are run through software that measures and calculates to determine the merits and probability of winning. LegalPay also considers precedence in similar cases, assessing the defendants' ability to pay an award, as well as other factors. Ultimately, LegalPay agrees to fund about 5% of the cases they consider. In addition to litigation funding, LegalPay also offers interim financing for insolvent companies. This practice is welcome by creditors and debtors alike. Investors provide the monies used to fund cases. Shahi estimates that investors can expect an IRR of 25-30%. Because third-party litigation funding is so new to India, regulation of the industry is practically non-existent. The hope is that regulatory oversight is forthcoming. The industry is sure to grow in India.

Mercedes Faces Lawsuit Over Alleged Emissions Falsification

Three men from Chorley and one from Leyland are suing auto giant Mercedes over its role in “dieselgate.” Dieselgate impacted multiple car manufacturers, accusing them of using defeat devices to illegally skirt emission standards. National consumer rights firm Slater and Gordon are bringing the claim. The Guardian details that the case is expected to expand into a collective action. At present, Slater and Gordon are also joint lead attorneys in a class action against Volkswagen—also related to ‘dieselgate.’ It has been estimated that 600,000 Mercedes cars in the UK could have been impacted. As many as a million people could be eligible to make claims of up to GBP 10,000 each—as the payouts apply to cars bought new or second hand. The case is being funded by third-party litigation funder Asertis. This funding allows all impacted Mercedes buyers to become claimants without any upfront payment. Claimants are understandably outraged that a luxury car company could engage in such alleged deceit. Eric Kos of Chorley, who has owned multiple Mercedes cars, explained that his trust in the company was destroyed when he realized they’d used illegal means to “dupe” customers like him into thinking they were paying for high quality cars.  Defeat devices were found installed in Mercedes cars in June 2018. The German Federal Motor Transport Authority findings necessitated a recall of more than 750,000 vehicles from across Europe. Later, Mercedes was required to recall about 90,000 more cars in England and Wales. Still, Mercedes intends to fight the claims, making a trial inevitable.