Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Communications with Members of a Conditionally Certified Class Action Represented by Other Counsel (Rule of Professional Conduct 2-100)
A few months back (Ethics Corner 12/14/2009) we looked at one aspect of Rule of Professional Conduct 2-100 (Communication with a Represented Party) which generally prohibits communication with a party the member knows to be represented by another attorney regarding the subject matter of that representation unless the represented party’s attorney consents. How does this rule apply in the context of communicating with members of a conditionally certified class represented by other counsel? In Hernandez v. Vitamin Shoppe Industries Inc. (2009) 174 Cal.App.4th 1441, a case of first impression, the Court of Appeal held that class members are represented parties for purposes of Rule 2-100 once the class action has been conditionally certified for settlement purposes. (Id. at 1459-1461.) Therein, the attorney in a competing class action sent a solicitation letter to class members urging them to opt out of their class action which had been certified for settlement and to join the competing class action he was prosecuting. The Court of Appeal affirmed the trial court’s order prohibiting the attorney from further communication with the class. In reaching its holding, the Court rejected the attorney’s argument that the rule applies only to communications from opposing counsel; the Court explained that, on its face, Rule 2-100 is not limited to the context of communications from opposing counsel and saw no reason to so interpret the rule. The Court also rejected the argument that the class members were not “parties” to the class action. While unnamed class members are not considered parties for certain purposes, case law from other jurisdictions applies analogous ‘no contact’ rules once a class is certified, and the Court concluded that it is appropriate to apply the rule in the context of conditional certification as well.  
--Luis E. Ventura
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**