Pseudonymous Conflicts of Interest

Eugene Volokh has done a long series of posts about litigants' requests to proceed under pseudonyms -- sometimes granted, usually denied -- many of which have been in litigation over various vaccination requirements. I tend to agree with Eugene's view that permission for anonymous litigation should be allowed only rarely, but I did succeed in obtaining such an order many years decades ago in juvenile case. At the time, Illinois had a bizarre rule that require anonymity for juveniles at trial, but not appeal. The intermediate appellate court initially upheld the distinction, but I convinced the Illinois Supreme Court to reverse.

Issues of anonymous litigation are not always self-contained. Consider the following paragraph in an order denying leave to proceed anonymously -- from Eugene's most recent post -- in which 22 of the original 39 plaintiffs dropped their anonymity request after the court ordered them to file detailed affidavits. The remaining group alleged, among other reasons, that they would face vilification if their names were disclosed:

Further, the record evidence here simply does not support the vilification that Plaintiffs allege they will face. Notably, 39 Plaintiffs proceeded forth with this lawsuit with a generalized concern of workplace retaliation for their choice to not receive the COVID-19 vaccination. And just four months after filing their Complaint, more than half of the original Plaintiffs decided that they no longer desired to proceed anonymously. This significant reduction in the number of Plaintiffs seeking to proceed under pseudonyms weighs against Plaintiffs' claim that there is stigma associated being unvaccinated as a federal employee or contractor.

So one group of plaintiffs undermined the anonymity request of another group. I have to wonder whether the attorneys disclosed this conflict-of-interest possibility when they signed up multiple plaintiffs. I’m betting they did not. I asked some friends in the legal ethics professoriate whether the losing plaintiffs, now forced either to identify themselves or drop the suit, have a cause of action against their lawyers.

Here is one response:

Interesting issue. I bet they (the lawyers) did not [disclose].  But what are the damages? Right? Depends on the viability of the underlying claim.

And my reply:

The lawyers are in a tough position. The clients will either have to drop their claim (thus either accepting vaccinations or losing their jobs) or proceed non-anonymously (thus exposing themselves to vilification). The lawyers have already alleged that either alternative would be damaging to their own clients. To defend against liability, they will have to claim that their original allegations were untrue or unprovable. That’s not uncommon in legal malpractice defense – “yes, we screwed up, but the case was a loser” – but still awkward, to say the least.

Joint representation of 39 individual clients can be a conflicts-of-interest minefield, even when it initially seems that they are all in accord.  Even if it appears that everyone ultimately wants the same thing, their may be latent conflicts about how to get there. It is the lawyers' job to identify and disclose, as an aspect of informed consent, before proceeding.

Comments

[anon]

Amazing! comments allowed! Anonymous comments allowed! Amazing!

Of course, Lubet will delete them at will and willy nilly.

The immediate reaction was to recall all the comments on this site calling anyone who comments anonymously "a coward," veiled threats ("I know who you are"), sort of "serious" comments decrying anonymity and the off-putting odious stance that no anonymous comment is worth response.

Now, here we have a PUBLIC FORUM. A court. A place where one would think that anonymity should NEVER be permitted, because the public has a right to know who the judges are ruling in favor of. Think about the "conflict of interest" issue and "code of conduct" issues that Lubet advocates.

Lubet seems to understand anonymity when he wants to understand it. Too bad he vilifies anonymous posters on this site by: a.) arbitrarily closing or deleting comments and b.) labeling any anonymous comment unworthy of any response!

Think of student evaluations. Think of the name of this site, the "Faculty Lounge." We all know that the law faculties are a judgmental gossipy clique totally unable to tolerate views that are not in sync with their latest "politically correct" dogma.

Again, Lubet, do you not understand? And, please don't plead "self defense" ... you use your time to criticize others. In the past, you have engaged against persons who may or may not have deserved what you dished out. You are in no position to demand immunity.

HEre, Lubet invites a consideration of the conduct of attorneys. Does he tell us the terms of the retainers? Does he analyze the ruling of the court as it relates to the options for the plaintiffs and the way that issue would interact with "causation" in a tort case?

Nah ... it is just speculation. "I asked some friends in the legal ethics professoriate whether the losing plaintiffs, now forced either to identify themselves or drop the suit, have a cause of action against their lawyers."

That's teh way experienced and reasoned analysis is always grounded!