Can a lawyer defending a class action mail copies of the complaint to others who might be affected and then take them on as clients?

Plain-English summary

Lawyer T represented the defendant in a class action in the U.S. District Court for the Northern District of Texas. The defendant class consisted of all persons who engaged in non-judicial (self-help) repossession of automobiles under Section 9.503 of the Texas Business and Commerce Code. T proposed to distribute copies of the complaint to others who might be affected by the pending action and to accept employment from them on a non-fee basis. He asked whether that would violate EC 2-3, EC 2-4, DR 2-104(A)(1), or DR 2-104(A)(5).

The Committee concluded that, under the circumstances (including the attorney's probable motivation), the conduct would not violate EC 2-3, but would violate EC 2-4, DR 2-104(A)(1), and DR 2-104(A)(5). It added, however, that the lawyer could accomplish notice to others who might be affected by the action through Rule 23(d)(2) of the Federal Rules of Civil Procedure, and that his acceptance of employment from those persons afterward, on either a fee-paid or a non-fee basis, would not violate any section of the Code.

Currency note

This opinion was issued in 1974, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. It also predates the line of First Amendment decisions on lawyer solicitation, including Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), and In re Primus, 436 U.S. 412 (1978); the categorical solicitation restrictions the opinion applied have since been narrowed, and a lawyer's direct contact with prospective clients is now governed by Texas Rule 7.03 and ABA Model Rule 7.3. 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 Treat this page as historical context, not current guidance.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: Could the lawyer mail the complaint to affected persons and take them on as clients?

A: No. The Committee concluded that distributing the complaint and accepting employment from those affected would violate EC 2-4 and DR 2-104(A)(1) and (A)(5), given the attorney's probable motivation.

Q: Did the Committee find a violation of EC 2-3?

A: No. The Committee concluded that the conduct would not violate EC 2-3, while finding violations of EC 2-4 and the two DR 2-104 provisions.

Q: Was there a permissible way to notify the affected persons?

A: Yes. The Committee said notice could be given through Rule 23(d)(2) of the Federal Rules of Civil Procedure, and that accepting employment afterward, on a fee or non-fee basis, would not violate the Code.

Background and rules framework

The opinion interprets DR 2-104(A) of the former Texas Code of Professional Responsibility, which restricted a lawyer who had given unsolicited advice from accepting resulting employment, along with EC 2-3 and EC 2-4. The Committee distinguished improper self-initiated distribution of the complaint from court-authorized notice under Rule 23(d)(2) of the Federal Rules of Civil Procedure. The modern analog for direct solicitation of prospective clients is Texas Rule 7.03 and ABA Model Rule 7.3.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), as the modern analog
• DR 2-104(A)(1), DR 2-104(A)(5); EC 2-3, EC 2-4 (former Texas Code of Professional Responsibility)

Statutes and rules:

• Fed. R. Civ. P. 23(d)(2) (notice to class members)
• Tex. Bus. & Com. Code Section 9.503 (non-judicial repossession)

See also

• TX Ethics Op. 383: Office Signs or Placards Stating the Nature of Practice
• TX Ethics Op. 470: Direct-Mail Solicitation Letter and Brochure to an Accident Victim
• TX Ethics Op. 521: Soliciting a Prospective Client by Letter and Videotape

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-376/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_376.pdf

Original opinion text

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

QUESTION PRESENTED

Would the distribution by T. of copies of the complaint to others who may be affected by such pending action and his acceptance of employment from such others on a non-fee basis violate either EC 2-3, EC 2-4, DR 2-104 (A) (1) or DR 2-104 (A) (5) of the Code of Professional Responsibility?

STATEMENT OF FACTS

T, the attorney, represents the defendant in a so-called class action which is pending in the U.S. District Court for the Northern District of Texas, Dallas Division.

The Plaintiff's Amended Civil Rights Complaint "seeks declaratory and injunctive relief against the Defendant (an individual d/b/a an auto company), individually and on behalf of all others similarly situated, for . . . violation of Plaintiff's rights protected by the Fourteenth Amendment to the Constitution of the United States, the Federal Civil Rights Acts and the Constitution and statutes of the State of Texas. Plaintiff . . . also seeks money damages for injuries caused by Defendant's violation of Plaintiff's rights protected by the Fourteenth Amendment to the Constitution of the United States, the Federal Civil Rights Acts, the Federal Truth-in-Lending Act and Regulation Z of the Board of Governors of the Federal Reserve System, and the Constitution and statutes of the State of Texas."

"The class represented by Plaintiff is composed of all persons who have purchased automobiles in the State of Texas and have entered into motor vehicle installment sales contracts which do not prohibit self-help repossession by the seller unless notice and hearing are provided for in said contract."

"The class is so numerous that joinder of all members is impracticable; there are questions of law and fact common to the members of the class; the claims of Plaintiff are typical of the claims of the class and Plaintiff will fairly and adequately protect the interests of the class."

"The class represented by Defendant is composed of all persons who engage in the non- judicial repossession of automobiles as authorized by Section 9.503 of the Texas Business of Commercial Code."

It is the conclusion of the Committee that such action by the attorney, under the circumstances (including probable motivation of the attorney), (1) would not violate EC 2-3 of such Code, (2) would violate EC 2-4 of such Code, (3) would violate DR 2-104 (A) (1) of such Code; and (4) would violate DR 2-104 (A) (5) of such Code.

The Committee has concluded, further, that such notification to others who may be affected by such pending action can be accomplished by the attorney by the use of Rule 23 (d) (2) of the Federal Rules of Civil Procedure. Thereafter, his acceptance of employment from such others on either a fee-paid basis or a non-fee basis would not violate any section of the Code of Professional Responsibility.

Tex. Comm. On Professional Ethics, Op. 376 (1974)