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35. Lundy, supra note 2 at paras 29–31.
36. Singh, supra note 26 at para 47.
37. Ibid at paras 42–43.
38. An ethical dilemma may arise when a client representative
plaintiff instructs counsel to accept a desirable
settlement offer that may represent a windfall
for the client in exchange for abandoning the proposed
class action before certification. In that circumstance,
counsel will be unable to fulfill the duty of
commitment to both the client and the other putative
class members. In most instances, the terms of the
lawyer’s retainer agreements should specifically
address this situation and circumscribe counsel’s
retention to advancing a class proceeding only.
Nonetheless, where the lawyer’s duties to putative
class members and the terms of their retainer conflict
with the instructions of the representative plaintiff
client, ethical obligations may be engaged that
require the lawyer to cease acting. Counsel should
also be mindful of r 3.2-10 of the Code of Professional
Conduct for British Columbia, which prevents
a lawyer from agreeing as part of a settlement not to
advance the class action with other representative
39. The requirement for court approval of settlements in
most jurisdictions in Canada may account for the
dearth of reported decisions on negligence claims by
putative class members against proposed class counsel
for breaches of a sui generis duty.
40. Ward K Branch & Luciana Brasil, “Settling a Class
Action (or How to Wrestle an Octopus)” (September
2010) at 7, online: <static1.1.sqspcdn.com/static/
hvk%3D>, citing Herbert B Newberg & Alba Conte,
Newberg on Class Actions, 3rd ed (Colorado
Springs: McGraw-Hill, 1992) at §11.13.