Before a class is certified, can the lawyers on either side contact people who might become class members?

Plain-English summary

The opinion addresses who may contact putative class members during the window before a class is certified. The committee frames the key question as whether putative class members are "deemed to be represented" by the lawyer seeking certification. It reasons that a client-lawyer relationship arises only when a client manifests an intent that the lawyer provide services and the lawyer agrees, or when a court or an authorized person substitutes for that assent. For class members, that relationship does not begin until the class is certified and the opt-out period has expired.

Because no consensual relationship, and no legal substitute for consent, exists before certification, the committee concludes that putative class members are not represented parties under the Model Rules. As a result, Rule 4.2, which bars contact with a represented person, does not prevent defense counsel from contacting them. The committee reviews prior ABA and state opinions, scholarly commentary on the represented-versus-unrepresented debate, and the Supreme Court's decision in Gulf Oil Co. v. Bernard, which rejected an all-or-nothing ban on communications with class members and held that any restriction requires case-by-case factual findings.

The committee concludes that both sides have a legitimate need to reach out to potential class members about the underlying facts, subject to Rule 4.3. Rule 4.3 does not limit factual inquiries, but it requires both sides to refrain from giving legal advice other than the advice to engage counsel, to avoid implying that the lawyer is disinterested, and to correct any misunderstanding about the lawyer's role. The committee then draws a distinction based on purpose: if plaintiffs' counsel's goal is to sign up a putative member as a named, directly represented party, Rule 7.3's restrictions on soliciting prospective clients apply, because the class-action setting does not negate the anti-overreaching policies behind Rule 7.3. Those restrictions do not apply, however, when counsel contacts potential class members merely as witnesses, so long as the contacts comport with the Model Rules.

In practice

Under this opinion, defense counsel may interview putative class members about the facts before certification without running afoul of Rule 4.2, treating them as unrepresented persons under Rule 4.3. Plaintiffs' counsel may do the same, but if the goal shifts from fact-gathering to signing the person up as a client, Rule 7.3's solicitation limits come into play. The opinion makes the represented-or-not line turn on certification plus expiration of the opt-out period, and it cautions that courts retain power under Gulf Oil to restrict communications on a case-specific record.

Common questions

Q: Can defense counsel talk to people who might end up in the class before it's certified?

A: Yes. The opinion concludes that "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," so Rule 4.2 does not bar the contact.

Q: When does a putative class member become class counsel's client?

A: At certification, not before. The committee stated that "a client-lawyer relationship with a potential member of the class does not begin until the class has been certified and the time for opting out by a potential member of the class has expired."

Q: What limits apply when I contact these people?

A: Rule 4.3. The opinion explains Rule 4.3 "does not limit factual inquiries but requires both sides to refrain from giving legal advice other than advice to engage counsel," and to avoid implying the lawyer is disinterested.

Q: Does it matter if I'm trying to sign the person up as a named plaintiff?

A: Yes. If plaintiffs' counsel seeks to represent the putative member directly, Rule 7.3's solicitation restrictions apply; but those restrictions "do not apply to contacting potential class members as witnesses."

Background and rules framework

The opinion interprets Model Rule 4.2 (contact with represented persons), Rule 4.3 (dealing with unrepresented persons), and Rule 7.3 (solicitation of prospective clients), and references Rule 7.2 and its Comment [4] on communications authorized by law, such as class-action notices. It situates the analysis within Gulf Oil Co. v. Bernard and a body of federal and state class-communication decisions.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with a represented person)
• ABA Model Rule 4.3 (dealing with an unrepresented person)
• ABA Model Rule 7.3 (solicitation of prospective clients)
• ABA Model Rule 7.2 and Comment [4] (communications authorized by law)

Cases:

• Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), restrictions on class communications
• Parris v. Superior Court, 135 Cal. Rptr. 2d 90 (Cal. Ct. App. 2003)
• Hammond v. Junction City, 167 F. Supp. 2d 1271 (D. Kan. 2001)

Other opinions cited:

• ABA Informal Op. 1469 (1981)
• NY State Bar Op. 676 (1995); D.C. Bar Op. 302 (2000); North Carolina 2004 FEO 5

See also

• ABA Formal Op. 501: Solicitation
• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• RI EAP Op. 2009-02: Representing Prospective Class Action Plaintiffs Is Not a Rule 1.7 Conflict Merely Because Unnamed Class Members Are Adverse to a Current Client
• RI EAP Op. 2013-02: A Fact-Finding Letter to Other Club Members Does Not Trigger Rule 7.3, but This Draft Crossed Into Solicitation

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 07-445.pdf