Ezel / Ethics Opinions / ABA
ABA 2007-04-11

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

Short answer: Yes. The opinion concludes that putative class members are not represented before certification, so Rules 4.2 and 7.3 do not generally bar either side from contacting them; both sides must follow Rule 4.3, and plaintiffs' counsel seeking to represent a member directly remains subject to Rule 7.3.
Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 07-445: Contacting Putative Class Members Before Certification

Short answer: The opinion concludes that before a class is certified, Model Rules 4.2 and 7.3 do not generally prohibit plaintiffs' or defense counsel from communicating with people who may later become class members, because those people are not "represented" and have no client-lawyer relationship with class counsel yet; both sides must still comply with Rule 4.3 on unrepresented persons, and plaintiffs' counsel who seeks to represent a putative member directly remains subject to Rule 7.3.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

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

Source