Pre-Certification Communication Ethics in Class Actions

Abstract

In a traditional lawsuit, when an attorney files a complaint on a client's behalf, the existence of an attorney-client relationship is unquestioned. However, this clarity does not currently exist between class counsel and unnamed class members until a federal district court certifies the action as a class action. Accordingly, the existing law leaves the relationship between class counsel and prospective class members undefined at a particularly critical time in the litigation-after filing, but before class certification. This uncertainty leaves class counsel, defense counsel, and the prospective class members in a very awkward situation. If unnamed class members are not full-fledged clients of the class attorneys, neither are they traditional third parties with whom lawyers for the parties are expected to deal at arm's length as non-advocates. They are intimately involved in the action, with their interests squarely at stake. The unnamed class members are expected shortly to ripen into members of a fully represented class, belonging squarely on one side of the litigation. The authorities generally agree that once the court certifies the case as a class action, a lawyer-client relationship exists between class counsel and all class members, whether named or unnamed. Pre-certification, however, the rules are less well-defined. The majority view, embraced by most courts, the Restatement, and the leading class action treatise, holds that before class certification, putative class members are not represented by class counsel. In short, the majority view adopts an arbitrary bright line approach, creating an illusion of certainty in an ambiguous relationship and failing to balance relevant considerations. Accordingly, an approach is needed that better serves both the absent class members and the realities of class action litigation. In Gulf Oil Co. v. Bernard, the Supreme Court noted that the Federal Rules of Civil Procedure, the First Amendment, and the ethical rules all have implications for pre-certification attorney communications with unnamed class members. This Article proposes a balancing test involving these three considerations. This approach more fully acknowledges the necessity of protecting potential class members and the implications of the ethical rules, while providing a remedy for improper communications by either defense counsel or class counsel.

Keywords: class actions, class certification, communications with class members, class counsel