SC Lawyer, September 2007, #5. Dealings with Putative Class Members.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, September 2007, #5.

Dealings with Putative Class Members

South Carolina LawyerSeptember 2007Dealings with Putative Class MembersBy John FreemanOn April 11, 2007, the ABA's ethics advisory committee issued Formal Opinion 07-445, outlining the rights and ethical responsibilities of counsel for plaintiff and the defense in communicating prior to class certification with persons who may be class members, but are not named parties. The opinion gives a green light to pre-certification communications by both sides, with some caveats.

Central to the ABA's analysis was its view that putative class members are not clients of the lawyer seeking to have the class certified. The ethics panel held that an attorney-client relationship results only when either (1) a client or the client's agent requests legal services, with the lawyer then accepting that invitation, or (2) "a substitute for that assent is given by a court," such as occurs when a class is certified. The panel held that putative class members are not represented by counsel for the named plaintiff prior to entry of a certification order, followed by the running of the opt-out period specified in the notice. The ABA panel held that putative class members cannot be viewed as class counsel's clients prior to the running of the opt-out deadline. This finding led the panel to conclude Rule 4.2 cannot prohibit defense counsel from contacting putative class members without going through opposing counsel.

The ABA's bright line test works fine for class actions under F.R.C.P. 23(b)(3), which requires notice and gives class members an opt-out right. Notice dissemination obligations and opt-out rights are less clear for class actions brought under federal Rule 23(b)(1) & (2), as well as under S.C.R.C.P. 23. What is clear under South Carolina law is that any lawyer bringing a class action is foolish to assume no special duties are owed to putative class members prior to the certification order/opt-out deadline set in the ABA's ethics ruling. The problem with depending on a bright line test is that class certification can occur informally in South Carolina.

In Premium Inv. Corp. v. Green, 283 S.C. 464, 324 S.E.2d 72 (S.C. App. 1984), the lawyer who brought a class action that was settled but never formally certified was sued by a...