UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK.
August 1, 1977.
Lorraine C. Cullen et al., Plaintiffs
New York State Civil Service Commission et al., Defendants.
The opinion of the court was delivered by: MISHLER
MISHLER, CH. D.J.: On July 15, 1977, this court entered an order appointing counsel for the absentee members of the class in this matter, directed the plaintiffs to file an amended complaint within thirty days, and stayed all motions to reargue the decision and order of June 27, 1977, until the amended complaint is served on the defendants. This memorandum of decision is intended to supplement the order of July 15, which was entered from the bench.
In certifying this litigation as a class action, we expressed reservations about the adequacy of representation of the absentee members of the class. The named plaintiffs' attorney was afforded a hearing on the question of whether he could effectively represent the interests of the entire class. The attorney, whose competence we do not question, nonetheless failed to demonstrate that he has experience in the specialized field of federal civil rights litigation or that he has access to the substantial resources necessary to support what promises to be costly and protracted litigation. Thus, while the present attorney might effectively represent the interests of the named plaintiffs, the expansion of the litigation to a class action, one that may define the rights of thousands of government employees in Nassau County, requires the appointment of additional counsel to represent the absentee members of the class.
In Amos v. Board of School Directors of City of Milwaukee, 408 F. Supp. 765 (E.D.Wisc.), aff'd 539 F.2d 625 (7th Cir. 1976), a school desegregation case, the court certified the action as a class action and appointed counsel to represent the classes of absentee plaintiffs. The district court expressed concern that "the interests of the two alleged classes cannot be fully and adequately represented in future proceedings by a single practitioner...." Id. at 774. It also found that, although there was no precedent for appointment of counsel in this manner, indirect authority provides substantial support for this procedure. The appointment of class counsel other than the lawyer for the representative parties bringing the suit may well be necessary whenever the device of a subclass is used. Brandt v. Owens-Illinois, Inc., 62 F.R.D. 160, 171 (S.D.N.Y.1974). In situations where counsel for the representative party is unable, either personally or through his firm, to provide the requisite legal services (as, for example, where simultaneous depositions are scheduled at various locations throught the country), the Manual for Complex Litigation recognizes that the interests of the class may be best served by the employment of additional counsel. 1 Moore's Federal Practice, Part 2, § 1.44, at 40-41 (2d ed. 1975). Finally, Rule 23 itself, in subsection (d) thereof, provides that absent members of the class may intervene with counsel of their own and, more generally, constitutes recognition of the Court's residual power to issue orders in conduct of actions to which the rule applies.
Id. at 775.
There are several additional considerations, present in this case, that provide support for appointment of counsel in a class action. Initially, it is worth pointing out that Rule 23(d)(3) allows the court to impose "conditions on the representative parties or on intervenors." The Advisory Committee Notes comment that "[subdivision] (d)(3) reflects the possibility of conditioning the maintenance of a class action, e.g., on the strengthening of the representation, see subdivision (c)(1) above...." Notes of the Advisory Committee, 28 U.S.C., Rule 23, Fed. R. Civ. P. Implicitly, the court has a responsibility to assure adequate representation before certifying a class, but rather than simply refuse to certify on the ground of inadequacy of representation, it may condition certification on the appointment of additional counsel. Rule 23(d) thus appears designed to assure that otherwise valid class actions are not denied certification because the attorney chosen by the named plaintiff lacks, for example, the resources for the expanded litigation.
The flexible approach of Rule 23 to representation is particularly significant where an action that seeks to vindicate a fundamental right, such as the right to free association, is certified under Rule 23(b)(1) and (b)(2). First, there is a strong public interest in vindicating and protecting first amendment rights. If all requisites to class certification are met, other than adequacy of representation, the purpose of Rule 23, which provides a mechanism to efficiently litigate questions of common interest such as those presented here, would be defeated if the court is allowed the option only of refusing to certify a class. Second, such a restrictive interpretation of the discretion of a court under Rule 23 is inconsistent with the specific purpose underlying the certification of a class under (b)(1) or (b)(2). As pointed out in our earlier opinion, Rule 23(b)(1) certification is appropriate, if not required, when there is a risk that multiple litigation would establish "incompatible standards of conduct for the party opposing the class". A finding that an action qualifies for (b)(1) treatment signifies the desirability of adjudicating in a single action the rights of both the class and the defendants. Since Rule 23(b)(1) requires the court to certify a class to avoid inconsistent adjudications, it follows that the court must be allowed to cure the problem of ineffective representation of a (b)(1) action by appointment of additional counsel. Otherwise, denial of class certification to an action that in all other respects qualifies as a (b)(1) action creates precisely the risk of multiple, inconsistent adjudications that Rule 23(b)(1) is designed to avoid, a risk that is both unnecessary and avoidable when the one obstacle to class status can be overcome by the simple expedient of appointing additional counsel.
Here, after soliciting and receiving suggestions for appointment from the named plaintiffs' attorney, the Federal Bar Council and the Federal Courts Committee of the Association of the Bar of the City of New York, we appointed Mr. Burt Neuborne to represent the absentee members of the class. Mr. Neuborne is a Professor of Law at New York University School of Law, where he teaches courses involving the federal courts and federal civil procedure and constitutional litigation. As former assistant legal director of the American Civil Liberties Union and former staff counsel to the New York Civil Liberties Union, he has an extensive background in federal civil rights litigation. He has access to the resources of both student law clinics and the Civil Liberties Union. There is no question that, in conjunction with the named plaintiffs' attorney, he will ably and effectively represent the interests of the class.
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