The role and ethical obligations of attorneys in class actions have received no shortage of scholarly attention. Much of this focus has been in the context of class certification hearings and assessment of the merits of settlements. Those inquiries are often ex post, focusing not on what attorneys may do, but on what they have already done. But what duties, if any, are owed by a plaintiff’s attorney to potential class members in a class action prior to certification? What is the scope of such a precertification fiduciary duty?

Such questions have been given short shrift. There has been little scholarly treatment of the contours of an attorney’s fiduciary duty outside the strictures of Rule 23 of the Federal Rules of Civil Procedure. Precertification conflicts are far more difficult to address because no Federal Rules-based framework exists for addressing precertification conduct. Unlike postcertification inquiries into conflicts of interest concerning settlements, this inquiry is particularly complicated because there is often inadequate information about likely outcomes when certain litigation strategies are employed by plaintiffs’ lawyers. At the precertification stage, without information about how the litigation will run its course, attorneys make decisions that could credibly be defended as in the best interest of the class, or be criticized as in breach of the attorney’s fiduciary obligations to those class members.

In discussing precertification fiduciary duties, this Note offers a specific formulation of the scope of attorneys’ precertification fiduciary duties: an attorney breaches his fiduciary duty to class members when he makes a decision that prejudices the substantive legal rights of absent class members without notice and opportunity for objection. When an action potentially prejudices or does prejudice a substantive legal right of absent class members, an attorney should have an opportunity to offer a good faith defense—that the course of conduct was undertaken in a good faith belief that it would maximize the class’s recovery. That defense, in turn, can be evaluated in terms of whether it is legitimate or pretextual.

 

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