Between a Rock and a Hard Place: Communicating with Absent Class Members

For decades, class action lawyers have grappled with myriad ethical issues surrounding the representation of absent class members. It is well known and often repeated that traditional ethical rules cannot be mechanically applied to class actions. Therefore, it is not surprising that the rules governing communications with represented parties have proven especially tricky in the class action context. At the outset, it is important to understand who is “represented” and at what point that representation begins. However, that is often easier said than done.