Academic journal article The Review of Litigation

The Ethics of Communication with Putative Class Members

Academic journal article The Review of Litigation

The Ethics of Communication with Putative Class Members

Article excerpt

Vincent R. Johnson*

I. The Rule Against Contact with Represented Persons

The rule against attorney contact with a represented person is deeply entrenched in the law of lawyering.1 Its origins date back to the early 1800s,2 and today the rule is enforced through a broad variety of mechanisms, including discipline,3 disqualification,4 evidentiary rulings,5 and equitable relief.6 As embodied in Rule 4.2 of the American Bar Association Model Rules of Professional Conduct, this anti-contact standard provides that: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. "7

A version of the rule exists in every American jurisdiction.8 Although the language of state standards often differs from the ABA model,9 in important substantive respects, local variations are normally indistinguishable from the Model Rule or its nearly identical predecessor in the now-superseded ABA Model Code of Professional Responsibility.10 A more detailed, but not significantly different, version of the rule also appears in the emerging Restatement (Third) of the Law Governing Lawyers.11

Two facets of the ABA Model Rule on communication with a represented person are striking. First, within its scope, the Rule states an absolute prohibition, rather than a restriction on time, place, or manner. Second, the demands of the Rule cannot be waived by the represented person whose interests are at stake.12 If one were addressing the subject tabula rasa, it would be possible to articulate a less stringent standard that might adequately serve the purposes of the Rule. A standard seeking to protect represented persons from overreaching by lawyers who represent adverse interests might do that by banning conduct that overreaches, rather than by prohibiting all contact entirely. For example, a rule might prohibit communications with a represented person about the subject matter of the representation if those communications involve fraud or other forms of misrepresentation,l3 or amount to undue influence.14 Alternatively, to address concerns about the possibly improper content of communications occurring outside the presence of the represented person's lawyer, a rule might require that all communications with a represented person be in writing and that copies of such writings be retained by their originator or provided to an appropriate party.15 Also, a rule intended to protect represented persons could, as many rules do,16 condition the permissibility of the lawyer's conduct on consent by the represented person. Another alternative to a total prohibition of contact would be to require opposing counsel to notify the attorney for the represented person of each communication, either before it occurs or after it takes place. However, these and other moderate approaches to protecting persons represented by counsel have been eschewed. It makes no difference whether the opposing lawyer treated the represented party unfairly17 or even whether the represented person, rather than the adverse lawyer, initiated the exchange.'8 Any communication about the subject matter of the representation is wholly banned, except as allowed by law or by consent of the represented person's counsel. Thus, as presently formulated in American jurisprudence, the rule against contact with represented persons is both sweeping and inflexible.

A sense of the exacting demands of the "represented person" rule can be gained by contrasting this standard with the rules that govern what many persons view as the most odious ethical violation by lawyers-"ambulance chasing."19 With limited exceptions,20 written solicitation of an accident victim is ethically permissible if the statements made are truthful and not misleading.21 Oral communication with an accident victim is also allowed if the injured person initiates the conversation. …

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