Candice Enders & Joshua P. Davis

Volume 74, Issue 5, 1331-1352

Attention to how courts address the ethics of defense counsel’s communications with absent class members before class certification is valuable for two primary reasons. First, it provides insight into how courts approach ethics in class actions generally. In the class action context, courts tend to pay more attention to the relevant procedural rules—particularly to Federal Rule of Civil Procedure 23—than they do to codes of professional responsibility. Relatedly, they also seek to promote the policy goals that animate Rule 23 rather than to emphasize formalistic distinctions, such as when class counsel begin to represent absent class members or whether class counsel represent individual class members, the class as a whole, or both.

Second, this area of study can improve clarity and predictability in complex cases, which frequently involve significant damages. Disputes often arise from communications between defense counsel and absent class members before certification, yet the topic has received insufficient attention. This Essay offers a framework that may aid judges, lawyers, scholars, teachers, and others as they navigate an insufficiently charted legal doctrine.

We contend that the relevant ethical rules, taken on their own, provide an incomplete picture of how courts view communications with absent class members in proposed class actions. In this Essay, following the Supreme Court’s decision in Gulf Oil Co. v. Bernard, we suggest the following approach to communications with absent class members: rather than emphasizing the existence and timing of an attorney-client relationship as governing communications with absent class members, courts should focus on protecting the rights of absent class members and the integrity of the class action process. In other words, the ethics of communications with absent class members turns more on Rule 23—and the policies it embodies—than on ethical codes.