Ethics Opinions

Opinion No. 82-5

May 1982

Summary: A lawyer, prior to instituting a class action, may properly advertise in newspaper or similar medium stating that he represents an individual client against a defendant, provided that the advertisement does not contain a deceptive statement or claim, for the purpose of determining whether there exist persons similarly situated to his client to justify bringing a class action.

Facts: A lawyer represents a client who purchased a money certificate from a bank, and was informed by the bank that he could borrow against the certificate at a specific rate of interest. When it came time to borrow, the client was advised that the interest rate had changed and he retained the lawyer. A small claims action was brought; however, it appears that it would not be economical to prosecute the claim to a conclusion unless the action could be brought as a class action. Prior to instituting a class action the lawyer would like to advertise in the newspaper to determine whether there are other customers of the bank in the same situation as his client.

Discussion: DR 2-101, "Publicity and Advertising," provides in material part that:
[A] lawyer shall not, on behalf of himself, his partner, or associate, or any lawyer affiliated with him or his firm knowingly use or participate in the use of any form of public communication containing a deceptive statement or claim.
This is the sole proscription, since July 1, 1979, upon advertising in Massachusetts. Under the committee's view an advertisement as suggested, provided it did not contain a deceptive statement or claim, would not be in violation of DR 2-101.
It might be argued that an advertisement was violative of DR 2-103, "Recommendation or Solicitation of Professional Employment," which provides in material part that a lawyer "shall not, by direct mail or other form of personal contact, recommend employment, as a private practitioner for a fee ... ." It seems clear, however, that this rule is addressed to "direct mail or other form of personal contact" and does not, therefore, include communication by the newspaper or similar media. Moreover, DR 2-103 expressly provides that:
But if success in asserting rights or defenses of his clients in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept employment from those he is permitted under applicable law to contact for the purpose of obtaining their joinder.
Finally, the committee notes that the former version of DR 2-103 stated that "[a] lawyer may accept, but shall not seek, employment" in this situation. The removal in 1979 of the words "but shall not seek" from the rule strongly suggests that the type of communication proposed here should now be permitted.

Permission to publish granted by the Board of Delegates, March, 10, 1982. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.