Ethical Issues in Class Actions Defence: Communications with Putative Class Members

Class actions are widely recognized to raise ethical issues for class counsel because of the lack of a traditional client. However, issues for defence counsel may also arise. Most notably, communications with class members can raise problems – particularly when defendants and their counsel may be keen to avoid a class action by early settlement or the creation of an alternate claims procedure. Fortunately, the recent decisions in Lundy v VIA Rail Canada Inc and Durling v Sunrise Propane Energy Group Inc have clarified the obligations that arise in these circumstances, and provide guidance in navigating the ethical boundary successfully. Co-authored by Michael A. Eizenga and Christiaan A. Jordaan, and published in the Barreau du Québec's Colloque National Sur Les Recours Collectifs: Développements Récents au Québec, au Canada et aux États-Unis.