Can a lawyer be both the named plaintiff (class representative) and class counsel in a class action?

Plain-English summary

The inquirer is considering a class action against New York State on behalf of a class of every registered attorney in the state, in which he would act as both the named plaintiff and counsel for the class. He asks whether he may serve in both roles.

The opinion explains that the question is governed mostly by class action law, not the Rules, and is therefore beyond the committee's jurisdiction. As background, it notes that in non-class actions there is no per se bar under the Rules to a lawyer proceeding pro se while representing a co-party with aligned interests (for example, co-plaintiff spouses or neighbors). Such a dual role will often create a personal-interest conflict under Rule 1.7(a), because a strategy or settlement might favor one client over another, but under Rule 1.7(b) that conflict can usually be waived if the lawyer reasonably believes he can provide competent and diligent representation and each affected client gives informed consent confirmed in writing.

The opinion then explains why the class-action variant is different. Courts and commentators widely recognize that duties to class members are not governed entirely by the Rules; courts resolve many such questions by reference to class action law. Whether a lawyer may serve as both class representative and class counsel is thus largely, if not entirely, a class action law question. The committee notes that some courts have held a lawyer may not represent a class in which the lawyer is the class representative under Federal Rule of Civil Procedure 23 (citing Perry v. Monaco), but states that its jurisdiction is limited to the Rules and it cannot opine on class action law.

In practice

Under this opinion, conduct that involves a lawyer proceeding pro se while representing aligned co-parties in a non-class action is not barred per se, but may create a personal-interest conflict under Rule 1.7(a) that requires informed written consent under Rule 1.7(b). Per the opinion, the dual class-representative-and-counsel question is left to class action law, and the committee declined to opine on it.

Common questions

Q: Can a lawyer represent co-parties while also appearing pro se?

A: Per the opinion, yes, with no per se bar, where the interests are aligned (for example co-plaintiff spouses or neighbors), subject to a Rule 1.7(a) personal-conflict analysis and, where a conflict exists, informed written consent under Rule 1.7(b).

Q: Can a lawyer be both the class representative and class counsel?

A: Per the opinion, the committee did not decide this. It explains the question is governed largely by class action law, not the Rules, and is beyond its jurisdiction.

Q: Did the opinion say anything about federal class actions?

A: Per the opinion, it noted only that some courts have held that under Federal Rule of Civil Procedure 23 a lawyer may not represent a class in which the lawyer is the class representative (citing Perry v. Monaco), without itself opining on class action law.

Background and rules framework

The opinion interprets New York Rule 1.7 (conflicts of interest), including personal-interest conflicts under Rule 1.7(a) and waiver under Rule 1.7(b). This corresponds to ABA Model Rule 1.7. The opinion treats the class-action-specific question as one of class action law outside its jurisdiction.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.7(a), 1.7(b)
• ABA Model Rule 1.7 (analogue)

Statutes and rules:

• 28 U.S.C. § 1654 (right to proceed pro se); N.Y. CPLR § 321 (appearance in person or by attorney)
• Federal Rule of Civil Procedure 23 (class actions)

Cases:

• Perry v. Monaco, 2025 WL 460804 (S.D.N.Y. Feb. 10, 2025), a pro se attorney may not serve as both class representative and class counsel

Other opinions cited:

• N.Y. City 2004-1: courts decide class representation by reference to caselaw construing Rule 23

See also

• NYSBA Ethics Op. 1253: Conflicts of Interest Among Family Members
• NYSBA Ethics Op. 1293: Conflict Analysis for a Per Diem Attorney
• NYSBA Ethics Op. 1285: Assigned Counsel and Imputed Conflicts

Source

• Landing page: https://nysba.org/ethics-opinion-1280-conflicts-of-interest-class-actions/