The Connecticut Bar Association Professional Ethics Committee recently released an important opinion clarifying the strategic options available to class action defense counsel. For the first time in Connecticut history, the committee stated that defense counsel can directly contact members of a putative class without fearing ethical violations. (CBA Informal Op. 2011-09). Until now, Connecticut offered no clear guidance on this important issue.
Previously, defense counsel generally avoided directly contacting members of the putative class. Rule of Professional Conduct 4.2 generally forbids an attorney from communicating with a party who is represented by another lawyer. It was unclear whether members of a putative class counted as parties. If a court later denied certification, then the members of the putative class were never parties to the case. But if the court later granted certification, could one say in hindsight that they were represented parties all along?
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