In the Fall 2011 ABA Journal of Labor and Employment Law, Vol. 27, No. 1, Fall 2011, Christopher Lage writes abut Avoiding and Dealing with Unethical Communications with Putative Class Members in Systemic Cases. The article is timely because there has been a dramatic Increase Equal Employment Opportunity
Commission (EEOC) systemic cases since the EEOC launched its 2006 initiative concerning these types of
claims. Although the flow may slow a bit after the Wal-Mart v. Dukes
case, at least for very
massive classes covering work sites across the nation, the general trend in increase is likely to continue. Systematic discrimination lawsuits account for about 14% of the EEOC's case load and since Dukes it has settled a suit against a telecommunications company for $20 million.
In light of this flow of class actions, lawyers representing class members and employers need to be well advised about permissible communications, which are regulated by our professional ethics. First, lawyers may not speak with represented persons without consent of that person's attorney. See Model Rule of Professional Conduct 4.2. The comment to rule 4.2 further clarifies communications with members of represented organizations, stating lawyers cannot speak with a member of an organization who "supervises, directs or regularly consults with the organizations lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability." Second, lawyers are limited in their communications with unrepresented parties, in that they cannot mislead or misrepresent regarding their role , or give legal advise. See Model Rule of Professional Conduct 4.3.
massive classes covering work sites across the nation, the general trend in increase is likely to continue. Systematic discrimination lawsuits account for about 14% of the EEOC's case load and since Dukes it has settled a suit against a telecommunications company for $20 million.
In light of this flow of class actions, lawyers representing class members and employers need to be well advised about permissible communications, which are regulated by our professional ethics. First, lawyers may not speak with represented persons without consent of that person's attorney. See Model Rule of Professional Conduct 4.2. The comment to rule 4.2 further clarifies communications with members of represented organizations, stating lawyers cannot speak with a member of an organization who "supervises, directs or regularly consults with the organizations lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability." Second, lawyers are limited in their communications with unrepresented parties, in that they cannot mislead or misrepresent regarding their role , or give legal advise. See Model Rule of Professional Conduct 4.3.
In the context of private systemic actions brought pursuant to Rule 23 of the Civil Rules of Civil procedure, the ABA and commentators generally agree that Model Rule 4.2 is not applicable to non-named putative members, who have no attorney-client relationship yet. Therefore, either side may generally communicate with putative class members. In contrast, defense counsel cannot speak with named representatives, with whom there is an attorney-client relationship.
As Lage notes, the Rule 4.2 is similarly applied to contacts with putative class members in EEOC systemic litigation. In these cases, it is recognized that the EEOC is pursuing it's own statutory right of action, in its own name, rather than as a representative, even where individual employees are named. "The EEOC takes the position that it does not have any attorney-client relationship with putative class members, since its interests in protecting the public may verge from the interests of the individuals for whom it seeks relief.
In light of the numbers of folks involved, and the ethical rules at play, parties regularly seek and courts regularly impose limitations on the ability of the parties to communicate with putative class members, as a prudential matter. There are a number of policy reasons for this. The Agency may overreach in communications with the putative members; the employer may intentionally or otherwise intimidate or coerce class members; putative members may be confused by the role of the attorney as to that member's interests; or, in cases concerning supervisors, there may be issues of agency liability.
In general, courts require an employer seeking to communicate with putative members to inform the members of the pending litigation, their possible right to participate, and their protection from retaliation. Courts also order defendant's to discontinue communications if the employee does not desire the communication or if they indicate they are represented by the EEOC. Id., and citations therein.
Similarly, the EEOC "must take care that a communication with a putative class member does not create confusion or generate allegations of government overreaching," such as when the EEOC advised employees they were not required to discuss the matter with the employers HR Department, but the internal grievance policy invited the employee to raise matters with HR. Thus, although it is rarer, the courts have been known to also impose restrictions on the EEOC's communications with putative class members.
There are special issues arising in class actions included managerial employees. For instance, there may be agency issues, or issues related to the potential disclosure of work product or other proprietary matters. The latter issues may even arise with former employers, communication with whom are not normally restricted, otherwise. In the case of higher levels of employees, it may be appropriate for counsel to send a joint letter to putative members.
There are special issues arising in class actions included managerial employees. For instance, there may be agency issues, or issues related to the potential disclosure of work product or other proprietary matters. The latter issues may even arise with former employers, communication with whom are not normally restricted, otherwise. In the case of higher levels of employees, it may be appropriate for counsel to send a joint letter to putative members.
In all cases, Lage urges both counsel for all sides to consider whether to seek court permission for, or court restrictions on communications, as relevant.
If you have any labor or employment matters that you would like to resolve privately through a knowledgeable and experienced arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
