Class actions have no place in the ‘freedom’ category of COVID litigation

As my colleague Cam Wilson reports, a lot of money has been crowdfunded and channelled to lawyers for the advertised purpose of bringing legal challenges against various COVID-related laws and regulations.

There are two potential problems with this. First, the obvious concern about punters being separated from their money on false or misleading premises. There is still one being born every minute.

Crowdfunding for legal cases is an unregulated market. It’s not an investment, nor a charitable donation. Rather, it’s a straight gift with no recourse, on a promise of some action which may or may not benefit the giver.

That’s fine — the advent of crowdfunding is one innovation which has begun to shift the balance between the traditional Davids and Goliaths of contestable legal disputes. Examples abound of litigants who have been able to pursue or defend suits they could only otherwise do if they could find lawyers willing to act pro bono or for conditional fees.

However, with great lumps of cash comes responsibility, to not be deceitful or sloppy about it. An example of the latter concern is something I’ve been observing quite a bit: the call of the class action.

It has become fashionable to shout “class action!” at any allegation of governmental or corporate wrongdoing; the money being raised for the challenge to compulsory vaccination for NSW construction workers is being touted as a class action. I’ve also recently been fielding a lot of inquiries about a class action against the federal government’s travel bans.

That’s misleading, because class actions have no place in the “freedom” category of COVID litigation. A class action is appropriate when a large number of people (the “class”) have all allegedly suffered harm from a single cause, and each would need the direct benefit of a court’s judgment in their favour to get some redress. Typically that means damages claims.

With COVID laws, the question is always a yes/no one: the law is either valid or it is not, whether on constitutional or other grounds. Either way, the answer will be the same for everyone, and therefore only one claimant is needed. For example: my firm ran a challenge against the “India ban” earlier this year on behalf of a single applicant. The result (we lost) answered the question for everyone: the ban was held to be legally valid.

Lawyers, it’s trite to say, should uphold the highest standards of ethical behaviour. Raising money for a legal case that won’t happen, or has no prospects of success, or whose prospects haven’t been considered at all, or which would not be run as advertised, is misleading conduct and falls far short of the ethical line.

That raises the second problem, which is that lawyers aren’t just supposed to be good citizens in the abstract; we’re bound by explicit ethical rules. The first of these is that our paramount duty as lawyers is to the court. The duty includes not abusing court process, for example by exploiting that process for mercenary gain.

We have other specific duties, including to not engage in conduct likely to be prejudicial to, or diminish confidence in, the administration of justice or to bring the profession into disrepute. We must also ensure that any advertising, marketing or promotion in which we engage is not false or likely to mislead or deceive.

The point of all these ethical duties is that one has to tread a fine line. There is no problem with expressing a view, even a controversial one (I tell myself frequently). And it is OK to advertise your wares; the active promotion of class actions has become endemic in certain corners of the legal profession.

However, caution is required, particularly if what a lawyer is doing may be perceived as shopping for revenue, and even more so when the targets of the ask are likely to be vulnerable to suggestion. A lot of money is being raised and, unfortunately, I suspect many of those contributing the money look set to be sorely disappointed.