January 27, 2014
Counsel must be careful when communicating with potential class members in a class action because communications made before the court certifies the class may lead to ethical violations and have consequences in the case.
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 and corresponding state ethical rules prohibiting:
- Communications with a person the lawyer knows to be represented by another lawyer in the matter.
- False or misleading communications about the lawyer’s services.
Further, if a communication between counsel and a potential class member is considered improper or abusive, it also may result in:
- A court-ordered restriction, limitation or prohibition of contact between parties and potential class members.
- In the case of abusive conduct by the plaintiffs’ counsel, a denial of class certification.
The Feature Article, linked below, discusses the reasons why counsel may want to communicate with potential class members, how these communications may violate ethical rules and other consequences abusive communications with potential class members may have in the case. The Feature also links to several Practical Law resources to help counsel navigate ethical and privilege issues in class actions.
Visit Practical Law to see the full Feature Article.