Asbestos litigation in most of the districts studied has shifted into a settlement mode. With few exceptions, cases settle shortly before or during trial. Efforts to accelerate the time of settlement have been successful, but major abbreviation of the pretrial process has demanded herculean efforts and raised questions of fundamental fairness. Fines for late settlements have proved to be efficient means of producing marginal gains in the timing of settlements. Lawyers have demonstrated an ability to settle cases with or without judicial assistance and the form of the judicial settlement role does not seem to affect the fact of settlement. The outcome is that cases settle when called for trial and they settle in whatever numbers they are called, whether individually, in clusters of five to fifty, or in a districtwide class action of hundreds of cases.
217. Model Code of Professional Responsibility DR 5-106 (1982); Model Rules of Professional Conduct Rule 1.8{g) (1985). These two rules are substantially identical. Rule 1.8(g) provides:
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients . . . unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
See also Hayes v. Eagle-Picher Indus., Inc., 513 F.2d 892 (10th Cir. 1975); Annot., Conduct of Attorney in Connection with Settlement of Client’s Case as Grounds for Disciplinary Action, 92 A.L.R.3d 288 (1979).