Solicitation in Class Actions: Should Class Certification Be Denied Because Class Counsel Solicited the Class Representative?

I. Introduction This Note surveys how federal courts have analyzed Federal Rule of Civil Procedure 23 requirement of adequacy of representation in cases in which class counsel has violated ethical rules prohibiting solicitation. It concludes by postulating that denial of class certification is not a suitable solution for class counsel's violation of ethical rules for two reasons. First, current Model Rules of Professional Conduct (Model Rules) prohibiting solicitation and class action device serve cross purposes, particularly in small claims class actions in which some form of solicitation is needed to overcome financial disincentive of bringing suit. Second, rather than enforcing Model Rules by denying class certification, courts can fashion other remedies that more directly target problem behavior without prejudicing class. Jason Sturkie was critically injured in a USAir jet crash in Charlotte, N.C. on July 2, 1994. His emotionally distraught father was called away from his son's bedside in Charlotte to pick up a piece of certified mail at post office in his hometown of Leesville, S.C. Thinking it could be mail from USAir, Mr. Sturkie left his son. went up to get package. I made a special trip from Charlotte, where my son was in critical condition, wondering what could be all about, said Mr. Sturkie. The parcel turned out to be from a law firm soliciting his participation in a lawsuit. There's a big package with a videotape and their resume, he recalls. bothered me, yes. That bothered me to no end.1 Then, after Valujet crash in Florida in May 1996, account appeared in New York Times:2 Victoria Cummock, a victims' advocate, was called in by National Transportation Safety Board to aid victims' families. After boarding a bus that took families to a memorial service, Ms. Cummock said she saw this one woman just hysterically crying. The woman, a Venezuelan whose brother had died in crash, said she had been warned by someone to hire a lawyer for her sister-in-law immediately, before critical evidence vanished. The adviser was later identified as a lawyer's employee. She said, `They tell me I have to make a decision before I leave, and I don't know that much about American system.'3 Has exercise of attorneys' commercial speech rights under 1st Amendment adversely impacted image of lawyers? The Supreme Court thought so. After Florida Bar presented Court with an anecdotal study connecting public's low regard for with lawyers' advertising, Court upheld Florida's newly enacted 30-day ban on direct mail solicitation4 to mass accident victims.5 The holding in Florida Bar represented a departure from a line of cases from 1970s and 1980s extending 1 st Amendment protection to lawyer advertising.6 In Florida Bar, Supreme Court constitutionalized state regulation of attorney advertising when state formulates regulation in such a way that it protects the flagging reputations of ... lawyers by preventing them from engaging in conduct that is universally regarded as deplorable and beneath common decency.7 The Court had little trouble holding that Bar's interest in protecting reputations of from harm was substantial; accordingly, regulation withstood constitutional challenge.8 Perhaps Florida Bar signals a turn in trend of legal advertising protection. This decision and a handful of recent criminal prosecutions for violations of state barratry provisions, as well as public concern about our litigious society, suggest that a witch-hunt on solicitation may be gaining momentum. Some states are bringing their criminal barratry statutes out of dormancy in an effort to curb attorney solicitation. For example, in USAir disaster mentioned above, John O'Quinn was charged with violating South Carolina's criminal barratry statute,9 and in 1993, Texas Legislature amended Texas' criminal barratry statute to enable state to prosecute barratry as a third-degree felony. …