The Case For Lawyer-Directed Litigation Funding In NY: Part 2

By Peter Jarvis and Trisha Thompson (January 11, 2019, 1:55 PM EST) -- In part one of this article, we provided a brief overview of lawyer-directed litigation funding agreements and some of the reasons that such transactions are important in our current legal system (e.g., at least some class-action, mass tort and public interest cases can only be pursued because of them). We then discussed the language, purpose and some of the prior interpretations of RPC 5.4(a) and its predecessor, former DR 1-302(A). In part two, we delve deeper into the stated purpose of the rule: to protect the professional judgment of lawyers. Specifically, we explain why, in our view, lawyer-directed, nonrecourse litigation funding is actually more likely to protect a lawyer's exercise of independent professional judgment than traditional means of litigation finance. We also explain that this position is not just supported by the experience of law firms whom participate in lawyer-directed, nonrecourse litigation funding but also by the contemporary work in the fields of psychology and behavioral economics. Finally, we reemphasize how lawyer-directed litigation funding allows worthwhile cases to be brought that otherwise could not be funded, promoting the important goal of access to justice....

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