Can Defense Counsel Communicate With Members of a Certified Class If They Are Representing Themselves Pro Se?
In Ingersoll v. Farmland Foods, Inc., 2012 WL 546100 (Nov. 7, 2012 W.D. Mo.), the Western District clarified the issue of whether defense counsel may communicate with a member of a certified class who is also representing himself pro se. In that case, one of the named plaintiffs in a putative FLSA and MMWL class had ceased communicating with class counsel, who had then moved for and been granted leave to withdraw as his counsel. The Court declared that the recalcitrant class representative, Mr. Truitt, would be expected to proceed pro se. Following certification of the class, Farmland’s counsel contacted Mr. Truitt, who indicated he no longer wished to pursue his claims. After Mr. Truitt signed a Stipulation of Dismissal, class counsel asserted that defense counsel’s contacts were prohibited by Missouri’s rules of ethics and the dismissal was invalid. Judge Gaitan disagreed, finding that Fed. R. Civ. P 23(e) did not require court approval of the dismissal of Mr. Truitt’s claims, because the stipulation dismissed only his claims, and not those of the certified class. Judge Gaitan also found that Missouri’s “anticontact rule” – Rule 4-4.2 of the Missouri Supreme Court Rules of Professional Conduct — did not apply under the admittedly unique” circumstances when the class member was also proceeding pros se as his own counsel. The key issue was the Court’s resolution of the contested factual issue – the scope of class counsel’s withdrawal – in Farmland’s favor. While class counsel argued that their withdrawal was limited to Mr. Truitt’s federal claims, Judge Gaitan disagreed, finding that his prior order granting class counsel’s motion to withdraw and allowing Mr. Truitt to proceed pro se were unqualified. While everything turned out fine in this case, it would seem prudent to obtain Court approval of any prospective contacts with even arguably represented class members in order to avoid this kind of complication.