Opinion 376

Statement of Facts Discussion Conclusion

T, the attorney, represents the defendant in a so-called class action which is pending in the U.S. District Court for the Northern District of Texas, Dallas Division.

The Plaintiff's Amended Civil Rights Complaint "seeks declaratory and injunctive relief against the Defendant (an individual d/b/a an auto company), individually and on behalf of all others similarly situated, for . . . violation of Plaintiff's rights protected by the Fourteenth Amendment to the Constitution of the United States, the Federal Civil Rights Acts and the Constitution and statutes of the State of Texas. Plaintiff . . . also seeks money damages for injuries caused by Defendant's violation of Plaintiff's rights protected by the Fourteenth Amendment to the Constitution of the United States, the Federal Civil Rights Acts, the Federal Truth-in-Lending Act and Regulation Z of the Board of Governors of the Federal Reserve System, and the Constitution and statutes of the State of Texas."

"The class represented by Plaintiff is composed of all persons who have purchased automobiles in the State of Texas and have entered into motor vehicle installment sales contracts which do not prohibit self-help repossession by the seller unless notice and hearing are provided for in said contract."

"The class is so numerous that joinder of all members is impracticable; there are questions of law and fact common to the members of the class; the claims of Plaintiff are typical of the claims of the class and Plaintiff will fairly and adequately protect the interests of the class."

"The class represented by Defendant is composed of all persons who engage in the non- judicial repossession of automobiles as authorized by Section 9.503 of the Texas Business of Commercial Code."

It is the conclusion of the Committee that such action by the attorney, under the circumstances (including probable motivation of the attorney), (1) would not violate EC 2-3 of such Code, (2) would violate EC 2-4 of such Code, (3) would violate DR 2-104 (A) (1) of such Code; and (4) would violate DR 2-104 (A) (5) of such Code.

The Committee has concluded, further, that such notification to others who may be affected by such pending action can be accomplished by the attorney by the use of Rule 23 (d) (2) of the Federal Rules of Civil Procedure. Thereafter, his acceptance of employment from such others on either a fee-paid basis or a non-fee basis would not violate any section of the Code of Professional Responsibility.