John Gaal's Ethics Corner

A recent decision in California Parks v. Eastwood Ins. Servs. Inc., No. SA CV 02-507-GLT (Kc) (C.D. Ca. December 3, 2002), applies these same principles to a representative action brought under Section 216(b) of the Fair Labor Standards Act. Under that provision, a “class” is created by employees affirmatively opting into the litigation. Accordingly, the court held that until individuals take the necessary steps to opt-in, they are in a situation analogous to pre-certification in an FRCP 23 class action case. Not surprisingly, while the Court recognized the permissibility of pre-opt-in communication, it did observe that any contact between defense counsel and potential opt-in plaintiffs could neither undermine nor contradict any notice or communication from the court itself.

Q: My client is a defendant in a class action. I know the general rule that prohibits an attorney from having ex parte communications with represented parties, but does that apply to the individual members of a class?

A: Pursuant to DR 7-104 of the New York Code of Professional Responsibility, an attorney is not permitted to directly communicate with any party whom the lawyer knows (or, based on the circumstances, should know) is represented by another lawyer with respect to the subject matter of that representation, unless the lawyer has the prior consent of the other lawyer or is authorized by law to engage in the communication.

Most authorities seem to recognize that the prohibition against ex parte contact with a represented party generally does not apply to potential class members prior to certification of the class. See e.g., Tedesco v. Mish kin, 629 F. Supp. 1474 (S.D.N.Y. 1986); but see Impervious Paint Ind. Inc. v. Ashland Oil , 508 F. Supp. 720 (W.D. Ky.), appeal dismissed, 659 F. 2d 1081 (6th Cir. 1981) (holding to the contrary).

A recent decision in California Parks v. Eastwood Ins. Servs. Inc., No. SA CV 02-507-GLT (Kc) (C.D. Ca. December 3, 2002), applies these same principles to a representative action brought under Section 216(b) of the Fair Labor Standards Act. Under that provision, a “class” is created by employees affirmatively opting into the litigation. Accordingly, the court held that until individuals take the necessary steps to opt-in, they are in a situation analogous to pre-certification in an FRCP 23 class action case. Not surprisingly, while the Court recognized the permissibility of pre-opt-in communication, it did observe that any contact between defense counsel and potential opt-in plaintiffs could neither undermine nor contradict any notice or communication from the court itself.