What ethical duties does a lawyer owe when representing a plaintiff class in a class action?
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This page answers the general question as of 2004. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses how the New York Code of Professional Responsibility applies to a lawyer representing a plaintiff class, assuming a federal action governed by Rule 23. It stresses that Rule 23 caselaw forms an indispensable background and in some respects modifies or supersedes the Code, while cautioning that the Committee has no jurisdiction over the construction of Rule 23 itself. Because class members' interests can diverge and individual consultation is usually impractical, the class lawyer has wide discretion with limited monitoring, so the lawyer must be especially careful to seek the best interests of the class.
On the decision to sue, the opinion concludes the lawyer should consult the prospective named plaintiffs about the advantages and disadvantages of proceeding as a class action and act only with their informed consent. On conflicts, the lawyer may proceed only with the named plaintiff's informed consent where permissible; as to absent class members the court, on certification, effectively acts for them in deciding whether the representation may proceed, but the lawyer must still satisfy the disinterested-lawyer tests of DR 5-101(A) and DR 5-105(C) and may not seek appointment if those rules bar it. The opinion concludes a class lawyer may take an unrelated matter adverse to a class member the lawyer does not individually represent and from whom the lawyer holds no confidential information.
On duties to class members, the opinion concludes the lawyer owes competence and diligence (DR 6-101, DR 7-101(A)) and a professional duty of confidentiality (DR 4-101) to members who never personally retained the lawyer, while expressing no view on whether the attorney-client privilege reaches them. On the no-contact rule, once a class is certified, DR 7-104 requires the class lawyer's or the court's consent before a lawyer opposing the class may communicate with class members about the action; before certification it does not apply. On internal disagreement, the lawyer may advocate or oppose a settlement the lawyer believes serves the class even over named plaintiffs' objections, need not withdraw, must inform the court of differing views, may not favor named plaintiffs or let fee interests drive the decision, and must disclose fee arrangements to the court.
In practice
Under the New York Code as it stood at the time, the opinion holds that class counsel acts for the class as a whole: securing informed consent from the lawyer's individual clients, owing competence, diligence, and confidentiality to absent class members, honoring the certified-class no-contact rule, and making settlement decisions in the class's best interest with full disclosure to the court. The opinion repeatedly defers to Rule 23 and its caselaw, which it treats as controlling where it diverges from the Code, and it does not purport to resolve every question class counsel may face.
This opinion applies the former New York Code (DR/EC numbering). New York replaced the Code with the Rules of Professional Conduct effective April 1, 2009; the concurrent-conflict provisions of DR 5-101 and DR 5-105 now correspond to Rule 1.7, the confidentiality provision of DR 4-101 to Rule 1.6, competence and diligence (DR 6-101, DR 7-101(A)) to Rules 1.1 and 1.3, and the no-contact rule DR 7-104 to Rule 4.2. Verify the current rule text and governing Rule 23 caselaw before relying on any specific requirement.
Common questions
Q: Does a lawyer need a client's consent before filing a class action on their behalf?
A: Yes. The opinion concludes the lawyer should consult the prospective named plaintiffs about the advantages and disadvantages of a class action and proceed only with their informed consent.
Q: What duties does class counsel owe to absent class members who never hired the lawyer?
A: The opinion concludes the lawyer owes them competence and diligence (DR 6-101, DR 7-101(A)) and a professional duty of confidentiality (DR 4-101), while taking no position on whether the attorney-client privilege protects their communications.
Q: Can opposing counsel contact class members directly?
A: Once a class is certified, no, without the class lawyer's or the court's consent, because DR 7-104 then applies. Before certification the opinion concludes the no-contact rule does not apply, though the court retains broad power under Rule 23(d) to authorize or restrict communications.
Q: Can a class lawyer support a settlement the named plaintiffs oppose?
A: Yes. The opinion concludes the lawyer may advocate or oppose a settlement the lawyer believes serves the class's best interests even over named plaintiffs' objections, need not withdraw, but must inform the court of the differing views.
Q: May fee considerations influence the class lawyer's settlement position?
A: No. The opinion concludes the lawyer may not trade more favorable fee terms for less favorable class relief and must fully disclose any fee arrangement to the court.
Background and rules framework
The opinion interprets the former New York Code against the backdrop of Federal Rule of Civil Procedure 23. The Code provisions it applies include DR 5-101(A) and DR 5-105(C) (personal-interest and concurrent conflicts; the analogs of Model Rule 1.7), DR 4-101 (confidentiality; Model Rule 1.6), DR 6-101 and DR 7-101(A) (competence and diligence; Model Rules 1.1 and 1.3), DR 5-107 (payment by third parties), and DR 7-104 (the no-contact rule; Model Rule 4.2). The opinion repeatedly notes that Rule 23 and its caselaw supply the controlling framework and lie beyond the Committee's jurisdiction.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest) / NY DR 5-101(A), DR 5-105(C)
- MR 1.6 (confidentiality) / NY DR 4-101
- MR 1.1, MR 1.3 (competence; diligence) / NY DR 6-101, DR 7-101(A)
- MR 4.2 (no-contact rule) / NY DR 7-104
Statutes and rules:
- Fed. R. Civ. P. 23 (class actions), including 23(a)(4), (g) (adequacy of class counsel)
Cases:
- In re "Agent Orange" Prod. Liab. Litig., 800 F.2d 14 (2d Cir. 1986), class counsel advocating a settlement over objections
- Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), court power over class communications
Other opinions cited:
- ABCNY Formal Op. 1987-4: settlement offers conditioned on class counsel's fee waiver
See also
- ABA Formal Op. 07-445: Contact With Putative Class Members
- ABA Formal Op. 06-438: Aggregate Settlements
- NYC Bar Ethics Op. 2003-03: Checking for Conflicts of Interest
- 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
Source
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