In a federal class action, a court sanctioned an attorney and her client for failure to adhere to rules on communications with class members. ABA Litigation Section leaders explain that educating clients as to the rules and staying abreast of client activity are key steps in avoiding missteps.
In Mullen v. GLV, Inc., several parents filed a class action lawsuit against a youth volleyball program, alleging that its owners and operators concealed a history of sexually abusing girls enrolled in the program. At a status hearing following class certification in the U.S. District Court for the Northern District of Illinois, the plaintiffs’ counsel raised suspicions regarding company representatives emailing class members to encourage them to opt out of the lawsuit. Defense counsel denied the allegations, explaining to the court that any emails from the company had responded to email inquiries from class members, and always indicated that the company could not comment on the pending lawsuit.
The plaintiffs subsequently learned that the company continued to communicate with class members about the suit and that the company’s counsel emailed a class member without confirming whether or not the class member was represented by counsel. The class members moved for sanctions against the defendants pursuant to Fed. R. Civ. P. 23 for interfering with the class notification process and against defense counsel for directly communicating with represented class members as well as for misrepresenting the company’s owners’ conduct during the status hearing.
While the motion for sanctions was pending, the company moved for summary judgment. Although the court ultimately granted most of the defendants’ summary judgment motion, it also granted the class members’ sanctions motion. The court held that the company’s owners’ conduct violated Rule 23 because it was willful, potentially coercive, and undermined the class notification process. Consequently, the company and both business owners paid the class members’ legal costs for bringing the motion and were sanctioned in the amount of $5,000 each. In September of 2020, the court issued an order denying defendants’ motion to reconsider its ruling on plaintiff’s motion for sanctions.
The court also held that defense counsel violated ABA Model Rules 3.3 and 4.2, which the court had adopted. Model Rule 3.3 prohibits attorneys from knowingly making false representations to the court. Counsel argued that her statement to the court that her client was not communicating with class members about the lawsuit did not run afoul of Model Rule 3.3 because it was not knowingly false. She admitted that she received the email communications prior to making representations about them to the court but said “she simply neglected to scroll down far enough to see it.” The court held that willful blindness to client’s behavior is no excuse for knowingly making a false representation. As a result, the court directed her to complete twice the required amount of professional responsibility hours for her next state bar continuing legal education cycle.
Model Rule 4.2 prohibits attorneys from directly contacting parties represented by counsel. The court explained that once a class is certified, class members who have not opted out are regarded as clients of class counsel. Although defense counsel conceded that she communicated with a class member, she contended that her communication to the class member did not violate Model Rule 4.2 because she did not initiate the conversation. The court disagreed. It does not matter which party initiated the communication, the court explained; the lawyer’s duty is to “immediately terminate communication.” Counsel violated the rule by responding and asking the class member for information. Moreover, she had not offered any evidence that the individual had already opted out or that counsel took any steps to determine that individual’s class status before sending the email communication.
To avoid a fate similar to that of the company’s attorney, practitioners should avoid making definitive statements to the court without first confirming the veracity of those statements, counsels Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Professional Liability Committee. It is a better practice to state that you are not aware of any client misbehavior, and ask the court for time to discuss the issue with your client, advises Emily J. Kirk, O’Fallon, IL, cochair of the Section’s Solo & Small Firm Committee.
Kirk also warns practitioners that once the class is certified, an attorney must make sure that an individual has opted out of the class before attempting to contact him or her. “When possible, the best practice is often to refer people to the notification website or the class administrator because they are a neutral party,” Kirk offers. Meanwhile, LeBoff stresses the importance of learning the rules regarding class actions, which vary from single-plaintiff litigation.
Defense counsel should educate clients on how to handle class member communications, and consistently remind clients not to communicate with class members, according to Kirk. It is best practice in any case to keep in good communication with clients, LeBoff adds. “Attorneys have to know what their client is doing,” he continues. “The attorney should have counseled the client on determining whether this is a business communication, and whether they should communicate with the class member,” he concludes.
