Opinion 94-20
(October 1994)

You have requested the committee to render an opinion based on the following facts:


You represent the debtor in several debt collection actions brought by attorney A and his firm. In conjunction with other counsel representing debtor defendants, you have filed a class action suit on behalf of your clients naming the collection firm, its primary attorney and other involved entities as defendants (hereinafter "collection defendants"). The collection defendants have retained counsel to represent them in the class action.

The collection defendants continue to act in the underlying individual collection actions. You have sought, and been granted, verbal permission from the collection defendants' attorney in the class action to continue to deal with the collection defendants in the underlying collection actions. You have also sent a written confirmation of this grant of permission to the collection defendants' attorney.

The committee assumes that it is the conduct of the collection defendants in the underlying individual collection actions that forms the basis of the class action suit. If that is the case, Rule 4.2 of the Pennsylvania Rules of Professional Conduct is implicated.

Rule 4.2 prohibits an attorney from communicating with an adverse party, who is represented by another attorney, about the subject of representation without the consent of the other attorney.

It is the committee's opinion that you have fully complied with the dictates of Rule 4.2 by obtaining permission from the collection defendants' attorney to continue to deal with the collection defendants in the underlying individual collection actions. Thus, it is clearly permissible for you to contact the collection defendants on the individual collection actions.

The committee wishes to caution you, however, that your dealings with the collection defendants in the underlying individual collection actions may make you a necessary witness at the class action trial which might result in your disqualification as an attorney for your clients under Rule 3.7 of the Pennsylvania Rules of Professional Conduct.

Finally, the committee believes that your letter may have been seeking the committee's opinion about whether the collection defendants should withdraw their representation in the individual collection actions. The committee does not opine on the conduct of other attorneys. Therefore, this response does not address the conduct of the collection defendants.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.