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John Gaal's Ethics Corner
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. Mishkin, 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).
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