This is part of the Ethics Committee’s regular series of Ethics Minutes for federal litigators and others—what to watch out for, what to do, and what not to do. Let us know what you think! Have an idea for a future Ethics Minute? Reach out to us!
The Curtain Rises
Plaintiff has sued a Vendor in a proposed federal class action for allegedly violating federal and state privacy law. After discovery closes, Plaintiff asks the court to certify an opt-in class under the federal statute and an opt-out class for the state law claims. Both putative classes would include certain employees of Vendor.
Shortly after that, and while the motion to certify is still pending, defense counsel for Vendor visits the place of business and interviews some of the employees, who give declarations that Vendor uses to support its opposition to the class-certification motion.
Plaintiff moves to strike the declarations and for sanctions, arguing that the state’s version of Model Rule 4.2, the “no contact rule,” bars ex parte communications with putative class members, treating them as represented parties even before the court rules on class certification.
Rule 4.2, “Communication with Person Represented by Counsel,” has been adopted in some form in all jurisdictions and prohibits communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. The question is: are putative class members represented before the class is certified?
The court, agreeing with Plaintiff, says “Yes,” based on its analysis of the state’s ethics rules and cases interpreting them.
Although the court declines to strike the declarations, it finds that Plaintiff was prejudiced because defense counsel had an ex parte opportunity to spin the case in Vendor’s favor during the interviews and orders the declarants to be deposed at Vendor’s expense.
The court notes that although Vendor’s counsel didn’t act in bad faith, they should have known about the ban on ex parte contact with putative class members; at the very least, they could have sought an order from the court. In fact, Model Rule 4.2 cmt.  advises that course when a lawyer is “uncertain whether a communication” is permissible.
The Moral of the Story
The devil is in the (local) details here. ABA Formal Ethics Opinion 07-445 (2007), interpreting the Model Rules, says that “putative class members are not represented parties for the purposes of the Model Rules prior to … the expiration of the opt-out period,” and either side may contact them. And opinions in some jurisdictions are in line with the ABA’s view. See, e.g., Kay Co., LLC v. Equitable Prod. Co., 246 F.R.D. 260, 264 (S.D. W.Va. 2007) (defendants are free to communicate with precertification putative class members, providing contact is not abusive).
However other jurisdictions (e.g., Pennsylvania) differ. In Pennsylvania, a line of decisions holds that putative class members are parties to the action until the court declines to certify a class, and that Pennsylvania’s version of Rule 4.2 bars precertification contact without the consent of class counsel. See, e.g., Weller v. Dollar Gen. Corp., 2019 U.S. Dist. LEXIS 34325 (E.D. Pa. Mar. 4, 2019).
Bottom line: it always pays to check for authority in the relevant jurisdiction. And in the class-action context, remember that it might sometimes be appropriate to seek a court order to resolve doubts under Rule 4.2, the no-contact rule.
Ethics Minutes are for your general information and do not constitute legal advice. The rules, ethics opinions, and disciplinary cases in particular jurisdictions vary and might result in an outcome different from the scenarios that are described here.
About the Author
Karen E. Rubin is a business litigator and member of the Office of General Counsel in Thompson Hine LLP’s Cleveland office. She is the co-editor of the firm’s ABA Journal award-winning legal ethics blog, The Law for Lawyers Today. Karen is a member of the FBA Ethics Committee and chair of the Cleveland Metropolitan Bar Association Ethics and Professionalism Committee. She is an adjunct professor at Cleveland-Marshall College of Law, where she teaches professional responsibility.
About the FBA
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