This Legal Update addresses the risks associated with communicating with potential class members in a class action.
A lawsuit does not become a class action unless and until the court enters an order certifying that the case satisfies the criteria set out in Rule 23 of the Federal Rules of Civil Procedure (FRCP). Counsel must be careful when communicating with potential class members before the entry of a certification order, as these communications can lead to ethical violations and other consequences in the action.
Why Would Counsel Communicate with Potential Class Members?
There are many reasons why counsel may need to communicate with potential class members before certification.
Which Ethical Rules Could These Communications Violate?
Depending on the context, content and intent, pre-certification communications with potential class members may violate the American Bar Association's Model Rules of Professional Conduct (Model Rules) and corresponding state ethical rules prohibiting:
Communications with a person the lawyer knows to be represented by another lawyer in the matter (Model Rule 4.2).
False or misleading communications about the lawyer's services (Model Rule 7.1).
Model Rule 4.2 may also apply where plaintiffs' counsel attempts to communicate with potential class members who also are senior or managerial employees of the defendant. These individuals may be represented by the defendant's counsel by virtue of their job-related responsibilities and authority (see Hammond, , at *9).
False or Misleading Solicitation
Plaintiffs' counsel must be wary when seeking to enlarge the class through solicitation, which may violate Model Rule 7.1 if it:
Is not clearly an advertisement.
Does not disclose all material facts about the action.
Does not provide adequate disclosure of the costs and benefits of participating in a class action.