Can a lawyer file a class action naming himself as the class representative and seek his own attorney's fees?

Plain-English summary

A lawyer asked whether he could file a class action in which he was both a named plaintiff seeking to represent the class and the lawyer seeking recovery of attorney's fees for himself for representing the class.

The committee concluded he could not. It quoted EC 5-1, which provides that a lawyer's professional judgment should be exercised solely for the benefit of his client and free of compromising influences and loyalties, with neither his personal interests nor those of others permitted to dilute his loyalty to his client. It also quoted DR 2-104(A)(5), which provides that where success in a class action depends on the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for joinder. The committee concluded those provisions prohibit a lawyer from filing a suit naming himself as the class representative and simultaneously seeking attorney's fees for representing the class.

Currency note

This opinion was issued in 1975, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.7 and 4-1.8 before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer be both the named class representative and class counsel seeking fees?

A: The opinion concluded he may not file a class action in which he is the named plaintiff representing the class and also seeks attorney's fees for himself for representing it.

Q: What rules drove the conclusion?

A: Per the opinion, EC 5-1 (undivided loyalty free of the lawyer's personal interests) and DR 2-104(A)(5) (a lawyer may accept but not seek class-joinder employment) together prohibited the arrangement.

Background and rules framework

The opinion applied EC 5-1 and DR 2-104(A)(5) of the former Code of Professional Responsibility, addressing a lawyer's undivided loyalty and personal interest in the matter. That subject corresponds to Model Rule 1.7 (conflicts arising from a lawyer's own interest) and Model Rule 1.8 (a lawyer's proprietary interest in the litigation); the current Florida counterparts are Rules 4-1.7 and 4-1.8.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR EC 5-1; DR 2-104(A)(5) (undivided loyalty; class-action joinder)

See also

• FL Bar Ethics Op. 75-17: Suing and Defending an Insurer
• FL Bar Ethics Op. 75-24: Loans for Clients' Living Costs

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-75-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-75-7-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 75-7
July 23, 1975
Advisory ethics opinions are not binding.
A lawyer may not file a class action in which the lawyer is a named plaintiff, seeks to represent the class and seeks recovery of attorney's fees for himself for representing the class.
CPR: DR 2-104(A)(5); EC 5-1
Vice Chairman Daniels stated the opinion of the committee:
We are asked if a lawyer may file a class action in which (1) he is a named plaintiff seeking to represent the class; and (2) he seeks recovery of attorney's fees for himself for representing the class.
EC 5-1 provides:
The professional judgment of a lawyer should be exercised within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.
In addition, DR 2-104(A)(5) provides:
If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder.
The Committee concludes that the above-quoted provisions prohibit a lawyer from filing a suit naming himself as the representative of a class and simultaneously seeking attorney's fees for representing such class.