Section 706 of the Civil Rights Act of 1964 expressly authorizes the EEOC to bring an action in its own name to obtain relief for classes of individuals aggrieved thereunder.  See 42 U.S.C. § 2000e-5(f)(1).  In General Telephone of Northwest, Inc. v. EEOC, the Supreme Court addressed the scope of the EEOC’s representation in such actions.  446 U.S. 318 (1980).  In General Telephone, the Supreme Court held that though the EEOC “acts at the behest of and for the benefit of specific individuals,” the EEOC functions in its own right and is not to supplant the private-action right for victims of discrimination.  Id at 326.  Though the EEOC, as a federal enforcement agency, acts to advance the public interest in preventing employment discrimination, it is not held to the strictures of Rule 23 of the Federal Rules of Civil Procedure.  Id.  More recently, the US Supreme Court reaffirmed the General Telephone holding in EEOC v. Waffle House, 534 U.S. 279, 122 S.Ct. 754 (2002).  This seeming duality of representation, unique to the EEOC in Title VII matters, can raise serious ethical issues for defendants’ attorneys attempting to communicate with individuals who may fall within the broadly defined EEOC class.  

Such a situation arose in EEOC  v. Albertson’s LLC, No. 06-CV-01273, 2007 WL 1299194 (D. Col. May 1, 2007).  In Albertson’s, the EEOC, citing violations of Title VII of the Civil Rights Act of 1964, commenced litigation on behalf of “all current or former black or Hispanic employees employed at the Albertson’s Distribution Center in Aurora, CO from January 1, 1995 to present.”  (Order Denying Plaintiff EEOC’s Emergency Motion for a Protective Order Prohibiting Ex Parte Communications With Class Members at 1-2) (Order).  The EEOC, under relevant rules of professional conduct and case law, claimed an attorney-client relationship with the putative class members and sought to prohibit Albertson’s from any ex parte communication with the putative class members.  Albertson’s disagreed with the EEOC’s stance and proceeded to interview certain potential class members – current employees who worked at the Albertson’s Distribution Center – without EEOC counsel present.  The EEOC subsequently presented Magistrate Judge Boyd N. Boland with a Motion for a Protective Order Prohibiting Ex Parte Communications With Class Members. 

The ethics rule implicated in Albertson’s was Rule 4.2 of the Colorado Rules of Professional Conduct, which is substantively identical to Rule 4.2 of the Model Rules of Professional Conduct.  Rule 4.2 of the Model Rules of Professional Conduct provides:

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 to do so by law or a court order.

The issue before the Albertson’s Court was whether the EEOC had established an attorney-client relationship with each of the potential class members so as to ethically preclude Albertson’s from communicating with such individuals without EEOC counsel present or the EEOC’s prior consent. The EEOC argued that if Albertson’s was allowed to proceed unfettered, there would be too great a potential for abuse, as well as a risk that the potential class members may unknowingly compromise their individual claims. In response, Albertson’s provided affidavits stating, in short, that each interviewee had consented to the interview, was informed of the pending litigation by the EEOC, and acknowledged that he or she had not requested representation by the EEOC.

The Court, relying on traditional class action case law, stated that the general test for determining whether an attorney-client relationship exists is the actual rendering of legal advice by the attorney. (Order at 8). The Court further noted that, within a class action, the general rule is that defendant counsel is allowed to communicate with potential class members prior to class certification. Id. Applying such principles, the Court denied the EEOC’s motion, holding that Albertson’s was allowed to contact allegedly aggrieved parties prior to the EEOC entering into an attorney-client relationship with the putative class members. The Court stated that in an EEOC action to enforce Title VII, an attorney-client relationship “cannot be created by the attorney alone and without the consent of the client.”  (Order at 10). The Court noted that:

“[t]he EEOC’s actions merely in filing an enforcement case and identifying a group of people as being among the allegedly aggrieved parties, without more, is insufficient to create an attorney-client relationship between the allegedly aggrieved parties and the EEOC.” 

(Order at 10-11). 

Of important note, however, the Court did suggest that if the EEOC would have presented evidence that the allegedly aggrieved party had initiated contact or consulted with the EEOC lawyer, an attorney-client relationship may exist, thus, possibly precluding Albertson’s counsel from freely communicating with such individuals.

In accord with Albertson’s, the ABA Standing Committee on Ethics and Professional Responsibility recently issued a formal opinion clarifying such situations in the class action context. The opinion, Formal Opinion 07-445 (April 11, 2007), entitled “Contact by Counsel with Putative Members of Class Prior to Class Certification,” clarifies if, when, and under what conditions plaintiff and defense counsel may contact putative class members.   

The Committee recognized that Rule 4.2, 4.3 and 7.3 are each factors that must be considered when attempting to contact potential class members. Rule 4.2 prohibits defense counsel from contacting an individual already represented by plaintiffs’ counsel. Rule 4.3, applicable to both plaintiff and defense, addresses communications with persons not represented by counsel, and Rule 7.3 limits plaintiffs’ counsel’s methods for soliciting prospective clients. 

The Committee stated that an attorney-client relationship is formed “when a client manifests an intent that a lawyer provide legal services to the client and the lawyer accepts . . .”  The Committee added that in the class action context, for purposes of the Model Rules, no attorney-client relationship exists with a putative class member prior to class certification and the expiration of the opt-out period. 

While, of course, there is no formal class certification or opt-out period for the “EEOC Class,” this general rule provided by the Committee regarding when an attorney-client relationship is established does provide further guidance as to if and when defense counsel can contact the so-called EEOC Class member. 

Finally, considering the nuances in the formation of an attorney-client relationship, defense counsel would be well served, first, to be overly cautious when approaching a potential EEOC Class member and, second, when certain no attorney-client relationship exists, pursuing such discovery avenues.

This article was prepared by David Dixon of Cross, Gunter, Witherspoon, & Galchus, P.C. in Little Rock, AR.