TNBPR June 4, 1981

Can a lawyer contact other purchasers of a defective product to get them to join a class action needing 100 named plaintiffs to certify?

Short answer: Yes, but only if the client contacts, not solicits, them. The opinion concluded that a lawyer may accept, but may not seek, employment from purchasers contacted for the purpose of obtaining their joinder, where success in asserting the client's rights in litigation in the nature of a class action depends on joining others, because a lawyer may not recommend his own or his firm's employment to a non-lawyer or ask someone else to recommend it.

Apply this to your situation

This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

The Board considered whether a lawyer representing several plaintiffs who had purchased a type of motor home with a design defect could contact other purchasers to join litigation under the Magnuson-Moss Consumer Warranty Act. That Act required 100 named plaintiffs for class certification, which would let purchasers have attorneys' fees and litigation expenses assessed as damages against the defendant.

The Board concluded that a lawyer shall not recommend employment of himself, his partner, or his associate, as a private practitioner, to a non-lawyer, nor request another person to make such a recommendation. It drew a line between soliciting and accepting employment: a lawyer may accept, but may not seek, employment from those contacted for the purpose of obtaining their joinder, where success in asserting the client's rights or defenses in litigation in the nature of a class action depends on joining others.

Common questions

Q: Can a lawyer reach out to other purchasers of a defective product to build the numbers needed for class certification?

A: Yes, to obtain joinder. The opinion allows contact "for the purpose of obtaining their joinder, if success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others."

Q: Can the lawyer sign up those contacted purchasers as new clients?

A: Only if they come to the lawyer, not the other way around. The opinion holds a lawyer "may accept but shall not seek, employment from those contacted."

Q: Can the lawyer ask someone else to recommend hiring him to the contacted purchasers?

A: No. The opinion states "a lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer, nor shall a lawyer request another to recommend his employment."

Background and rules framework

The opinion applied the Code of Professional Responsibility's prohibition on recommending one's own employment to a non-lawyer, distinguishing permissible joinder-seeking contact in litigation-driven class actions from prohibited solicitation of new clients. The modern correlate is Model Rule 7.3 (solicitation of clients), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

Model Rule 7.3 (solicitation of clients), modern correlate

Statutes:

Magnuson-Moss Consumer Warranty Act (class-certification requirement of 100 named plaintiffs; fee-shifting for successful claims)

Source

Landing page: https://www.tbpr.org/ethic_opinions/81-f-7

Original opinion text

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

81-F-7 - Class Action

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-7

This Ethics Committee of the Board of Professional Responsibility of the Supreme Court of Tennessee has been requested to consider the propriety of a lawyer who represents several plaintiffs, purchasers of a type of motor home with design defect, contacting other purchasers to join in litigation under the Magnuson-Moss Consumer Warranty Act, a requirement of which is 100 named plaintiffs for certification as a class, which would confer on purchasers the right to have attorneys' fees and litigation expenses assessed as part of damages against the defendant.

It is the opinion of the Committee that a lawyer shall not recommend employment as a private practitioner, of himself, his partner, or associate to a non-lawyer, nor shall a lawyer request another to recommend his employment; however, a lawyer may accept but shall not seek, employment from those contacted for the purpose of obtaining their joinder, if success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others.

This 4th day of June, 1981.

ETHICS COMMITTEE:

Randall Burcham

W. H. Lassiter

George E. Morrow

APPROVED AND ADOPTED BY THE BOARD

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