Talking Points
Under the right circumstances, class action lawsuits offer advantages to both clients and counsel. Most important, class actions promote judicial economy by resolving the claims of multiple plaintiffs together rather than through individual lawsuits.
But a class action also can throw potential clients and lawyers on both sides of the case into a kind of limbo, at least until class certification occurs.
The uncertainty arises because the relationship between plaintiffs lawyers and prospective class members is ill-defined during the period after the action is filed but before the class is certified by the court. Once the class is certified, a lawyer-client relationship exists between the lawyers and all members of the class.
But before certification, the nature of the relationship is less clear. The way in which plaintiffs lawyers and defense counsel communicate with prospective class members during this time raises important ethics issues, says the ABA Standing Committee on Ethics and Professional Responsibility in its Formal Opinion 07-445, issued April 11.
The confusion is understandable. After all, in other kinds of litigation, claimants find their own lawyers; but in class actions, lawyers find the claimants. In a class action, contact with prospective clients is necessary to develop facts, including information that may be relevant to whether a class should be certified. It also is necessary to inform prospective class members that the class has been certified. During this time, defense lawyers may have a valid interest in contacting prospective class members as well.
But, the ethics committee’s opinion emphasizes, “putative class members are not represented parties for purposes of the Model Rules prior to certification of the class and the expiration of the opt-out period.” As a result, “the key to evaluating the propriety of contacting putative class members is whether they are deemed to be represented by the lawyer or lawyers seeking to certify a class,” the opinion states.
Three ABA Model Rules governing communications with individuals provide guidance, according to the ethics committee. None of them expressly prohibit communications between lawyers and putative members of the class, but they all impose some limits. (The ABA Model Rules of Professional Conduct are the basis for most state professional ethics rules, which directly govern lawyers.)
ARE YOU MY LAWYER?
Rule 4.2 prohibits lawyers from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter “unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
If prospective class members are not represented by counsel for the named plaintiff in the case, both the plaintiffs’ lawyers and the defense counsel are governed by Model Rule 4.3, which prohibits a lawyer from giving legal advice to an unrepresented person, other than the advice to secure counsel, “if the lawyer knows or reasonably should know that the interests of such a person are or have reasonable possibility of being in conflict with the interests of the client” represented by the lawyer.
The provisions of Model Rule 7.3, which regulate solicitation by lawyers, also apply in the context of class actions. Rule 7.3 places restrictions on direct personal solicitation by lawyers and requires most written communications with prospective clients to be labeled as advertising material.
“Both plaintiffs’ counsel and defense counsel have a legitimate need to reach out to potential class members regarding the facts that are the subject of the potential class action, including information that may be relevant to whether or not a class should be certified,” the opinion states.
“With respect to such contacts, Rule 4.3, which concerns lawyers dealing with unrepresented persons, does not limit factual inquiries but requires both sides to refrain from giving legal advice other than advice to engage counsel, if warranted.
“If, on the other hand, plaintiffs’ counsel’s goal is to seek to represent the putative class member directly as a named party to the action or otherwise, the provisions of Rule 7.3, which governs lawyers’ direct contact with prospective clients, applies.”
Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility.
