Review of Litigation
The ethical prohibition against contact with represented persons is an exacting rule. It carries with it the threat of serious consequences, including, but not limited to, attorney discipline, disqualification of counsel, and inadmissibility of evidence obtained in violation of its terms. However, there are still important unresolved questions relating to the interpretation of the rule, including its proper operation in class action litigation.
Following analysis, the various rationales offered in support of the rule fail to justify an application of the contact ban to communications with unnamed putative class members during the pre-certification period of class action litigation. Absent a judicial determination that a class should be certified, there is no basis for concluding that an unnamed potential member of a class, who has never been in contact with the lawyer seeking to certify the class, should be treated as having a lawyer. Additionally, these anti-contact provisions often prove to be unnecessarily harsh, and there are other regulatory alternatives available. Consequently, in class action litigation before certification, unnamed putative class members should not be treated as “represented persons” for the purposes of the rule.
Vincent R. Johnson, The Ethics of Communicating with Putative Class Members, 17 Rev. Litig. 497 (1998).