When the bad guys are wearing white hats

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the case regarding Chevron's activities in Ecuador. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. One important reason the apparently lopsided attention is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply the consequence of personal ethical lapse, but may suggest that ethical violations are an occupational hazard for plaintiffs’ counsel in transnational class actions. I argue that the relative size and newness of plaintiff firms to transnational legal practice, particularly in comparison to the legal conglomerates that generally represent multi-national defendants, create some vulnerabilities. More importantly, I analyze how transnational class litigation destabilizes the essential cornerstones of attorneys’ ethical obligations to both clients and the legal system. When attorneys are unmoored from these essential cornerstones, questions about how and when national ethical rules apply become obscured, particularly given existing ambiguities in the rules themselves. I examine how the politicization of high-profile transnational class litigation can add to the ethical perils already present. Finally, in conclusion, I offer a few observations about lessons for attorneys and regulators to insulate future transnational litigation from the problems and perils that have undermined the search for justice in Chevron.