Ethics Opinion 1280: Conflicts of interest, class actions

Ethics Opinion 1280: Conflicts of interest, class actions

4.3.2025

By Ethics Opinions

Opinion 1280 (03/31/2025)

Topic:  Conflicts of interest, class actions

Digest: Under the New York Rules of Professional Conduct a lawyer may in some circumstances proceed pro se while also representing individual co-plaintiffs or co-defendants in the same matter.  But whether a lawyer could proceed pro se as a class representative and also represent the class is a question that is governed by class action law and not by the Rules of Professional Conduct, and thus is a question that is beyond this Committee’s jurisdiction.

Rules: Rule 1.7

FACTS:

1. The inquirer is considering commencing a class action lawsuit against New York State in which the class would consist of every registered attorney in the State. He asks whether he could act as both the named plaintiff and counsel for the class, noting that every New York attorney would participate in any recovery obtained if the action were successful.

QUESTION:

2. May a lawyer simultaneously be both a named plaintiff and counsel for the class in a class action?

OPINION:

3. For the most part, this question is governed not by the New York Rules of Professional Conduct (the “Rules”), but by class action law, and thus is beyond our jurisdiction.
4. In non-class actions, there is no per se bar under the Rules to a lawyer proceeding pro se and representing a co-party with aligned interests. For example, subject to any applicable court rules, one spouse might appear pro se and represent the other spouse in an action in which the two act as co-plaintiffs or co-defendants with respect to a claim by or against both.  Or one neighbor might proceed pro se and represent other neighbors in a lawsuit concerning a common threat to the neighborhood.[1]
5. Under Rule 1.7(a), a lawyer both representing a client and proceeding pro se in the same action will often have a personal conflict of interest, in that there would be “a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” For example, a particular litigation strategy might advance one client’s interests more than another client’s interests, or a settlement might be in the interests of some clients but not others.  Under Rule 1.7(b), however, a conflict arising under Rule 1.7(a) can be waived in most cases if the lawyer “reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client . . . [and] each affected client gives informed consent, confirmed in writing.”
6. But courts and commentators widely recognize that lawyers’ duties to class members are not governed entirely by the Rules.[2]  On many issues, the ethics rules provide limited guidance and courts resolve questions by reference to class action law.[3]  Whether a lawyer would be permitted to act as a named plaintiff and also represent the class is thus largely, if not entirely, governed by class action law, not by the Rules.
7. We note that some courts have held that, under Federal Rule of Civil Procedure 23, a lawyer is prohibited from representing a class in which the lawyer is a class representative.[4]  Our jurisdiction is limited to interpreting the Rules, however, and we cannot opine on matters arising under class action law.

CONCLUSION:

8. Under the Rules a lawyer may in some circumstances proceed pro se in a matter where the lawyer also represents co-plaintiffs or co-defendants. But whether a lawyer could proceed pro se as a class representative and also represent the class is a question that is governed by class action law and not the Rules, and thus is a question that is beyond this Committee’s jurisdiction.

(32-24)

 

[1] The right of an individual to proceed pro se is protected by statute — See,  28 U.S.C. §1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”); N.Y. CPLR § 321 (“A party . . . may prosecute or defend a civil action in person or by attorney, except that a corporation or voluntary association shall appear by attorney . . . .”).  The terms under which a lawyer may represent a client in a matter in which the lawyer has a personal interest are addressed by the Rules.

[2]  See, e.g., Bruce A. Green & Andrew Kent, May Class Counsel Also Represent Lead Plaintiffs?, 72 Fla. L. Rev. 1083, 1093-1101 (2020) (collecting cases); Nancy J. Moore, Ethical Duties of Class Counsel Also Representing Class Representatives, 72 Fla. L. Rev. Forum 160, 166 (2020-2022) (noting that “the rules of professional conduct do not currently provide adequate protection for the class” and discussing the courts’ duties to monitor the adequacy of representation as part of the class action lawsuit); Eli Wald, Class Actions’ Ethical “KISS”:  The Class Action Lawyer’s Client Is the Class, 74 Hastings L.J. 1433, 1458 (2023) (noting that “[t]he Model Rules fail to offer a consistent, clear answer to the fundamental question of whom class counsel represents” . . . and that “[f]or some purposes, courts follow the Model Rules; for many others, they do not”).

[3]  See, e.g., N.Y. City 2004-1 (“The standards used by courts in deciding whether to approve class representation . . . draw to a considerable extent on standards of professional responsibility, but ultimately they are found in caselaw construing Rule 23 . . . .”).  Some commentators have suggested that classes in class actions should be seen as a kind of entity or organizational client, and that courts substitute for the governance structures that would direct class counsel under ordinary application of the Rules.  Nancy J. Moore, Who Should Regulate Class Action Lawyers?, 2003 U. Ill. L. Rev. 1477, 1487 (“a class differs from other types of entity clients under Rule 1.13.  For one thing, it is the court, rather than a decision-making body within the class itself, that is empowered to make decisions normally reserved for clients.”); Wald, supra, at 1452-55 (suggesting that courts should be considered “constituents” of the class for purposes of overseeing class counsel).  In any case, whether a court will or should consent to a particular class counsel’s conflict is governed by considerations outside the Rules.

[4]  E.g., Perry v. Monaco, 24 Civ. 8736 (LJL), 2025 WL 460804, at *2 (S.D.N.Y. Feb. 10, 2025) (“in this Circuit, a pro se plaintiff who is an attorney may not bring an action in which he will serve as both class representative and class counsel”) (citing case law and a treatise on federal court practice).