In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.
In this case, the 7th Circuit Court of Appeals determined that class counsel’s faxing of unsolicited advertisement was misconduct. The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members. Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.
I raise this case because it raises the issue of attorney misconduct. First of all, there are across-the-states ethics rules that govern attorneys’ conduct. You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.
As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action. The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct. Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.
In fact, there are ethical rules that discuss the reporting of misconduct. In Minnesota, Rule 8.3 discusses the reporting of professional misconduct. Rule 8.3 states, in relevant part,
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class. In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).
So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper? The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.