May Connecticut defense counsel contact putative class members about the litigation before the court certifies the class?

Plain-English summary

Defense counsel asked whether Rule 4.2 permitted contact with people included in a proposed federal class before the court decided certification. The Committee concluded that putative class members are not represented by class counsel unless and until the class is certified.

Filing a complaint and asking the court to appoint class counsel does not itself create attorney-client relationships with every proposed member. The opinion follows federal cases, ethics opinions, and the Restatement majority rule allowing pre-certification contact and individual settlements that do not affect others' rights.

The conclusion does not permit contact with the named plaintiffs or anyone known to be directly represented in the matter. A court also may impose reasonable restrictions on communications with putative members.

Before certification, contacted putative members ordinarily are unrepresented, so Rule 4.3 applies. Counsel must account for duties owed when dealing with an unrepresented person whose interests may be adverse to the defense client.

In practice

Under this opinion, certification marks the general transition for Rule 4.2 purposes. Before then, counsel must distinguish named or individually represented people from other putative members and comply with unrepresented-person and court-order limits.

Common questions

Q: Are all putative class members represented by class counsel when the complaint is filed?

A: No. The Committee says representation generally begins upon certification.

Q: May defense counsel contact the named plaintiffs?

A: No. They are represented regarding the litigation.

Q: What if a putative member has personal counsel?

A: Rule 4.2 bars contact when defense counsel knows the person is directly represented in the matter.

Q: May the court restrict pre-certification communications?

A: Yes. The opinion recognizes reasonable court-imposed restrictions.

Background and rules framework

Rule 4.2 bars subject-matter communications with a known represented party absent consent or legal authorization. Rule 4.3 governs dealings with unrepresented people.

Citations and references

Connecticut Rules of Professional Conduct:

• Rules 4.2 and 4.3

Cases:

• Weight Watchers of Philadelphia v. Weight Watchers International, 455 F.2d 770, 775 (2d Cir. 1972)
• Christensen v. Kiewit-Murdock Investment Corp., 815 F.2d 206, 213 (2d Cir. 1987)
• Garrett v. Metropolitan Life Insurance Co., 1996 WL 325725, at *6 (S.D.N.Y. June 12, 1996)
• Gulf Oil Co. v. Bernard, 452 U.S. 89, 100-04 (1981), court restrictions on class communications

Other opinions cited:

• ABA Formal Opinion 07-445, contact with putative class members
• New York City Bar Formal Opinion 2004-01
• Philadelphia Ethics Opinion 2009-1
• Michigan Ethics Opinion RI-219

See also

• ABA Formal Op. 07-445: Contact with putative class members
• VSB LEO 1890: Communications with represented persons
• ABA Formal Op. 91-359: Contact with former employees

Source

• Landing page: Connecticut Bar Association Informal Ethics Opinions
• Original PDF: Informal Opinion 11-09