Recent ABA Ethics Opinions

By Peter H. Geraghty, Director, ABA ETHICSearch

In April and May of 2007, the ABA Standing Committee on Ethics and Professional Responsibility issued two Formal Ethics Opinions, 07-445. Contact by Counsel with Putative Members of Class Prior to Class Certification and 07-446. Undisclosed Legal Assistance to Pro Se Litigants.

Formal Opinion 07-445

Can you speak to the class?

In Formal Opinion 07-445, the Committee began its analysis stating that the question of whether lawyers for either the plaintiff or defendant could contact putative members of a class action before the class was certified implicates the Model Rules of Professional Conduct, the Federal Rules of Civil Procedure and the First Amendment.

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

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In the Committee's view, there is no lawyer client relationship with potential members of the class until the class has been certified and the opt-out period has expired:

...Before the class has been certified by a court, the lawyer for plaintiff will represent one or more persons with whom a client-lawyer relationship clearly has been established. As to persons who are potential members of a class if it is certified, however, no client-lawyer relationship has been established. A client-lawyer relationship with a potential member of the class does not begin until the class has been certified and the time for opting out by a potential member of the class has expired. If the client has neither a consensual relationship with the lawyer nor a legal substitute for consent, there is no representation. Therefore, putative class members are not represented parties for purposes of the Model Rules prior to certification of the class and the expiration of the opt-out period. The Committee noted that plaintiffs also have an interest in communicating with putative members of a class. However, if their intent when they do so is to solicit employment from the putative class members. their conduct is governed by Rule 7.3 Direct Contact with Prospective Clients http://www.abanet.org/cpr/mrpc/rule_7_3.html. Rule 7.3 prohibits "in person, live telephone or real-time electronic contact with a prospective client when a significant motive for doing so is the lawyer's pecuniary gain" and also requires that all targeted written recorded or electronic communications be labeled as "Advertising Material". The Committee noted further that Rule 7.3 did not apply if the plaintiff's lawyer was contacting the potential class members as witnesses "so long as those contacts are appropriate and comport with the Model Rules."

The Committee also made it clear that the courts have discretion under Rule 23 of the Federal Rules of Civil Procedure to regulate communications between lawyers and the potential members of a class.

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Formal Opinion 07-446

Ghost writer

In Formal Opinion 07-446, the Committee considered whether a lawyer has an obligation to disclose that he has assisted a litigant who is appearing pro se before a tribunal either by reviewing or preparing documents that are to be submitted to the court. The Committee concluded that the lawyer has no such duty to disclose.

The Committee noted that there are a great many state bar opinions that have been issued on the topic that have come to varying conclusions. Some state that disclosure is not required; others state that disclosure is required because "(the) failure to do so would both be misleading to the court and adversary counsel, and would allow the lawyer to evade responsibility for frivolous litigation under applicable court rules."

In the view of the Committee, disclosure of the assistance must be made only when the fact that the lawyer has assisted the litigant is material to the matter. The Committee stated:

Whether the lawyer must see to it that the client makes some disclosure to the tribunal (or makes some disclosure independently) [FN6] depends on whether the fact of assistance is material to the matter, that is, whether the failure to disclose that fact would constitute fraudulent or otherwise dishonest conduct on the part of the client, thereby involving the lawyer in conduct violative of Rules 1.2(d) http://www.abanet.org/cpr/mrpc/rule_1_2.html , 3.3(b) http://www.abanet.org/cpr/mrpc/rule_3_3.html , 4.1(b) H http://www.abanet.org/cpr/mrpc/rule_4_1.html , or 8.4(c) http://www.abanet.org/cpr/mrpc/rule_8_4.html .

Normally, the fact that the litigant has received such assistance is not material to the matter, and litigants need not disclose that they have received it unless a law or court rule requires it.

This opinion withdrew ABA Informal Opinion 1414 (1978), in which the Committee had stated that that fact that the pro se litigant was receiving assistance must be disclosed, but that the lawyer providing the assistance need not be identified.

The Committee also discussed the concern expressed in other state and local bar opinions that pro se litigants sometimes receive special treatment (e.g. liberally construing pleadings under circumstances where the pleadings drafted by the pro se litigant are obscure) from the courts and that therefore the court should be informed when they have received such assistance. The Committee dismissed this concern, stating that the fact that the litigant has received assistance will be evident to the court on the face of the documents submitted, and that the litigant would receive no such special treatment.

The Committee also noted that the lawyer would not violate Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) by providing assistance without disclosure since the lawyer has made no statement to the court about the scope of the representation, and may be constrained by Rules 1.2 and 1.6 from doing so. The Committee also rejected the contention that lawyers must assume responsibility for the pleadings they draft under applicable court rules, noting that these rules apply only when the lawyer signs the pleadings.

For available links to the State and local bar association ethics opinions cited in Formal Opinions 07-445 and 07-446, see the list provided in the additional resources page.

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