The Florida Bar

September 17, 1971

An attorney may accept, but not seek, employment from a “class” of persons he has contacted in preparation of a class action.

CPR: DR 2-104(A)(5)

Chairman Massey stated the opinion of the committee:

A member of The Florida Bar has represented certain litigants against a cooperative association in order to obtain a refund of certain amounts of money which have been retained and held by the association for capital purposes. The association is a cooperative involved in the citrus business and the theory of the suit is that current and active members of the association should furnish the capital by retiring contributions which were made in years prior by other members. The clientele of the inquirer are ex-members of the association and have not received any benefits from the retention of moneys contributed in past years.

In the course of the litigation, the attorney has obtained a list of several hundred persons falling into the category above described of the initial plaintiffs and the inquirer believes the additional persons to be members of a class. The question is whether the attorney can ethically make inquiry to these additional persons to determine if they are interested in having their moneys returned to them, assuming success in the litigation.

DR 2-104(A)(5) does authorize a lawyer to accept, but not to seek, employment from a class of persons contacted for the purposes of obtaining their joinder in a class action suit. The issue, however, of whether or not litigation in which the inquirer is involved is properly a class action is one which should be determined by the court. Assuming presentation of this question to the court, the inquirer can obtain direction from the court as to whether and in what manner contact may be made with other persons situated similarly to those plaintiffs represented by the inquirer.

As pointed out in the Disciplinary Rule, any contact with a member of a “class” should not seek employment in behalf of an attorney. Thus, at all events, whatever the direction of the court, any contact would have to be dignified and to the end of advising of the pendency of a cause of action which may affect the right of the person being contacted, but in no event should the contact seek to have such person employ the original attorney in the litigation.

[Revised: 08-24-2011]