I represent clients with claims that might become a federal class action. Can I run an advertisement asking others with similar experiences to come forward?

Plain-English summary

An attorney asked the panel about an advertisement he wished to run to identify individuals who had experiences similar to those of three unrelated clients. He disclosed that he was Rhode Island counsel for a related civil action pending in federal court that sought class certification. The advertisement briefly solicited information and did not suggest that legal action had been taken or that legal representation was available; the attorney hoped to identify a pattern of similar events and circumstances that would help defend his current clients, support related civil claims on their behalf, or assist the potential federal class action.

The panel found the advertisement proper, relying on Code of Professional Responsibility DR 2-104(5), which the panel read as clearly recognizing that contacting other potential class members to obtain evidence and information in connection with class action litigation is proper and necessary. The panel noted that the same provision also permits an attorney to accept employment from individuals contacted this way, provided that employment is not actively sought.

Currency note

This opinion was issued in 1987, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct (which superseded the 1988 Rules of Professional Conduct, applying the ABA Model Code of Professional Responsibility's Disciplinary Rules in effect at the time of this opinion). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can I advertise to find people with experiences similar to my clients' if I'm involved in a related class action?

A: Yes. The opinion holds the advertisement was proper under DR 2-104(5), which permits contacting potential class members to gather evidence and information in connection with class action litigation.

Q: Can I take on the people who respond to the advertisement as clients?

A: Yes, with a limit. The opinion holds that DR 2-104(5) permits accepting employment from individuals contacted this way, provided the attorney does not actively seek that employment.

Background and rules framework

The opinion applied DR 2-104 of the ABA Model Code of Professional Responsibility, then in force in Rhode Island, which the panel read (citing subsection "(5)" as printed in the opinion) to permit an attorney to contact potential class members for evidence and information in connection with actual or potential class action litigation, and to accept resulting employment without actively soliciting it.

Citations and references

Rules of Professional Conduct:

• RI DR 2-104(5) (Code of Professional Responsibility; contacting potential class members in connection with class action litigation)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2087-02.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel Opinion #87-2

Request #6

Issued November 3, 1987

An attorney seeks panel advice concerning the propriety of an advertisement he wishes to run aimed at identifying individuals who have had experiences similar to those of his three, unrelated clients. The attorney also discloses that he is Rhode Island counsel for a related civil action being brought in Federal Court which seeks certification as a class action.

The advertisement in question briefly solicits information, and does not suggest that legal actions have been taken or that legal representation is available. The attorney indicates that he hopes to identify individuals who have had experiences similar to those of his clients in order to establish a pattern to the events and circumstances. The attorney believes that establishing the existence of such a pattern would be useful either in defending his present clients, bringing related civil charges on their behalves or in connection with the potential class action in federal court.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.

With respect to the matter at hand, the Panel takes the position that the advertisement is proper. The Panel relies on Code of Professional Responsibility DR 2-104(5). This section clearly recognizes that contacting other potential members of a class in connection with class action litigation to obtain evidence and information is proper and necessary. The Panel points out that this section also permits an attorney to accept employment from those contacted, as long as such employment is not sought.

The Panel, therefore, advises the attorney that it is permissible for him to contact potential members of a class by advertisement to assist in the defense of his clients. The Panel indicates that no violation of the Code of Professional Responsibility will occur provided the attorney does not actively seek legal employment from those individuals who respond to the advertisement.