When a lawyer solicits members of a certified class for individual representation, must the lawyer tell them they are already represented by class counsel?

Plain-English summary

Bar Counsel asked whether it is proper for an attorney to solicit clients in a class action without disclosing to them that they are members of a class represented by class counsel. In the facts, members of a certified class were contacted during the opt-out period and signed individual contingent-fee agreements without being told that their class had been certified or that the court had already approved another firm as class counsel.

The opinion concluded that, given the class members' important interest in making a fully informed decision about opting out, an attorney contacted about individual representation must disclose the option of representation by class counsel. The attorney must fully and candidly discuss the benefits and drawbacks of class representation compared to proceeding independently, and the attorney's interest in obtaining a new client cannot override the obligation to disclose the merits of representation by class counsel. The opinion concluded the attorney's failure to explain these options, including that the class had been certified, was improper.

In a footnote, the opinion noted that a lawyer representing individual plaintiffs may communicate with other members of a certified class about the action during the opt-out period without violating the no-contact rule (DR 7-104(A)(1); Model Rule 4.2), because the interests of class members who opt out and those who do not are not, in the Committee's view, opposing or adverse within those rules.

Currency note

This opinion was issued in 1992, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility while referencing the Model Rules). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer sign up class members individually without mentioning class counsel?

A: No. The opinion concluded the attorney must disclose that the prospective clients are members of a certified class represented by class counsel and discuss the option of class representation.

Q: What did the lawyer have to explain to a class member?

A: The opinion concluded the lawyer must fully and candidly discuss the benefits and drawbacks of class representation compared to individual representation, and could not let the interest in a new client override that duty.

Q: Could the lawyer contact class members at all during the opt-out period?

A: Yes. The opinion noted in a footnote that contacting other class members during the opt-out period does not violate the no-contact rule, because opt-out and non-opt-out members are not adverse to each other.

Background and rules framework

The opinion was decided under the former Alaska Code of Professional Responsibility, the analog to today's advisor rule (Model Rule 2.1) and solicitation rule (Model Rule 7.3). It applied EC 5-1 (the lawyer's professional judgment exercised solely for the client's benefit) and DR 1-102(A)(4) (no dishonesty, fraud, deceit, or misrepresentation), drawing on the Comment to Model Rule 2.1 regarding straightforward advice, and addressed the no-contact rule (DR 7-104(A)(1) / Model Rule 4.2) for communications during the class opt-out period.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• EC 5-1 (professional judgment exercised solely for the client) (cf. Model Rule 2.1)
• DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation)
• DR 7-104(A)(1) (communication with a represented person) (cf. Model Rule 4.2)

Cases:

• Impervious Paint Industries, Inc. v. Ashland Oil, 508 F. Supp. 720 (W.D. Ky. 1981)

See also

• ABA Formal Op. 07-445: Contact With Putative Class Members
• Alaska Ethics Op. 92-5: Solicitation of Clients
• Alaska Ethics Op. 2005-2: Ethical Obligations When Changing Firms

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/92-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 92-1
Failure to Disclose Representation
By Class Counsel
The Committee has been asked by Bar Counsel whether it is proper for an
attorney to solicit clients in a class action without disclosing to the potential
clients that they are members of a class represented by class counsel.
As the Committee understands the facts involved in this matter, the
potential clients were members of a certified class in a large, multi-party class
action. These individuals were contacted by an attorney during the "opt-out"
period after class certification, and entered into contingent fee agreements with
the attorney for representation in the case as "individual" plaintiffs. The
attorney not disclose to the clients that they were members of a class certified
by the Superior Court, nor did the attorney disclose that the Superior Court
had already approved representation of their class by another law firm.
During the "opt-out" period, class members may withdraw from the class
and hire individual counsel. Civil Rule 23(c)(2). The decision on "opting-out" is
important, and a class member may decide to seek legal advice from
independent counsel before deciding one way or the other. The class member
may want an opinion from an attorney other than class counsel, may not
understand the options, may want to consult his or her usual attorney, or may
be cautious about representation by class counsel for other reasons.1
Given the class members' important interests in making a fully informed
decision on "opting-out," the Committee firmly believes that an attorney
contacted by a class member about individual representation in a class action
must disclose the option of representation by class counsel with the
prospective client.
The attorney must fully and candidly discuss the benefits and drawbacks
of class representation as compared to those of proceeding independently. See,
Comment, Model Rule 2.1, "Advisor,"
ABA Annotated Rules of Professional Conduct, (1984 ed.) at 187 ("A client is
entitled to straightforward advice expressing the lawyer's honest assessment").
The attorney's interests in obtaining a new client cannot override the
obligation to fully disclose the merits of representation by class counsel. See
EC 5-1 ("The professional

1The committee believes that a lawyer representing individual plaintiffs in a class action may
communicate with other members of a certified class about the class action during the "opt-out"
period without violating DR 7-104(A)(1). See ABA Model Rule 4.2. "Communication with Person
Represented by Counsel," ABA Annotated Model Rules of Professional Conduct, (1984 ed.) at 268.69
("Rule 4.2 is intended to preserve the integrity of the client-lawyer relationship by protecting
the represented party from the superior knowledge and skill of the opposing lawyer) (emphasis
added). The interests of class members who "opt-out" compared to those who "opt-out" are not, in
the committee's view, "opposing" or "adverse" within the meaning of these rules. Compare,
Impervious Paint Industries, Inc. v. Ashland Oil et al., 508 F.Supp. 720, 722 (W.D. Kentucky,
1981) ("defendants' counsel must treat plaintiff class members as represented by counsel, and
must conduct themselves in accordance with both sections of DR 7-104").
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judgment of a lawyer should be exercised, within the bounds of the law, solely
for the benefit of his client and free of compromising influences and loyalties")
and DR 1-102(A)(4) ("A lawyer shall not...[e]ngage in conduct involving
dishonesty, fraud, deceit or misrepresentation").
The facts presented indicate that the attorney failed to disclose to the
class members that they were represented by class counsel. The Committee
understands that the attorney contacted the class members very shortly after
the class was certified. They may have been unaware that the class had been
certified, and equally unaware that class counsel had been appointed.
The Committee concludes that the attorney's failure to fully explain all the
options available to the class members was improper. The attorney had an
obligation to candidly disclose to these potential clients that their class had
been certified, and to discuss whether their interests might be better protected
by "opting-in," as opposed to choosing individual representation.
Approved by the Alaska Bar Association Ethics Committee on January 9, 1992.
Adopted by the Board of Governors on January 17, 1992.

/1/The committee believes that a lawyer representing individual plaintiffs in a

class action may communicate with other members of a certified class about
the class action during the "opt-out" period without violating DR 7-104(A)(1).
See ABA Model Rule 4.2. "Communication with Person Represented by
Counsel," ABA Annotated Model Rules of Professional Conduct, (1984 ed.) at
268.69 ("Rule 4.2 is intended to preserve the integrity of the client-lawyer
relationship by protecting the represented party from the superior knowledge
and skill of the opposing lawyer) (emphasis added). The interests of class
members who "opt-out" compared to those who "opt-out" are not, in the
committee's view, "opposing" or "adverse" within the meaning of these rules.
Compare, Impervious Paint Industries, Inc. v. Ashland Oil et al., 508 F.Supp.
720, 722 (W.D. Kentucky, 1981) ("defendants' counsel must treat plaintiff class
members as represented by counsel, and must conduct themselves in
accordance with both sections of DR 7-104").
ID138:MANUL

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