As class-action filings become commonplace, general practitioners should be aware of certain ethical and practical issues that may arise with respect to attorney communications to putative, or prospective, class members before a class-certification motion under Rule 23 is made. Before contacting putative class members, defense counsel and proposed class counsel must consider ethical and practical issues.. The determination as to whether the proposed class members are actually parties to the action is not resolved until the court considers a motion for class certification, which does not generally occur until significant discovery has been exchanged between the parties. The ethical issues related to attorney communications with proposed class members are generally caused by the uncertainty as to the status of these putative class members in this intervening or limbo period.
Proposed class counsel’s communication with members of the proposed class can implicate ethical issues concerning solicitation of clients and the fairness of the proceeding. Defense counsel’s communication with members of the proposed class can also raise ethical questions concerning the prohibition on communication with represented parties, as the proposed class members can be deemed clients of class counsel. Additionally, there are concerns related to the content of individual settlement communications between defense counsel and members of the putative class.
The standard ethical prohibitions on ex parte communications with represented parties remain firmly in place in the context of a class-action suit. See ABA Model Rules of Prof’l Conduct R. 4.2. However, the issue can become unclear where an attorney seeks to communicate with a member of a proposed class before a class is certified by the court. Courts generally distinguish between communications occurring before a class is certified pursuant to Rule 23 and those occurring after a certification motion is granted. In the pre-certification context, the proposed class counsel is generally considered only to represent the named parties but may owe a fiduciary duty to the entire class after filing a class-action complaint. In re Gen. Motors, 55 F.3d 768, 801 (3d Cir. 1995).