Opinion 578

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #578 – 12/04/1986 (24-86)

Overrules NY State 93
Modified by N.Y. State 629
Topic: Lawyer as union member; conflict of interest; lawyer union member representing State in disciplinary proceedings against other State union employee members
Digest: Lawyer employed by State may be a member of union with non-lawyer members as long as lawyer violates no Disciplinary Rule; lawyer union member may not represent State in disciplinary proceedings against other State employees under the same collective bargaining agreement to which lawyer is subject
Code: Canons 5 and 9; DR 5-105(A), 5-105(G), 6-101(A)(3), 7-101(A)(2), 7-101(A)(3); EG 5-13

QUESTION

1 May a lawyer join a labor union composed of both lawyers and non-lawyers?2 May a lawyer employed by a State department or agency who is covered by a collective bargaining agreement represent the State in disciplinary proceedings brought against other State employees under a collective bargaining agreement?

OPINION

Certain lawyers employed by the State of New York are covered by a collective bargaining agreement that provides that they shall pay agency shop dues. Some of these lawyers have joined the union, which includes non-lawyers as members. As part of their duties, the lawyers may be required to represent the State in disciplinary proceedings brought against other State employees under a collective bargaining agreement These other employees may be either full or agency shop members of the same union or they may be members of another union which represents State employees.In response to question 1, the Code of Professional Responsibility does not specifically prohibit membership by lawyers in unions This is true even where the union has members who are non–lawyers Consequently, lawyers may be union members provided they violate no Disciplinary Rule, See ABA Inf. 1325 (1975) (lawyers are not forbidden per se to belong to unions, whether or not the union membership is limited to lawyers) NY. State 93 (1968), decided prior to the adoption of the Codis to the contrary and is hereby overruled.Ethical guidance on the proper conduct of lawyers who are union members is found in Canon 5 which requires that an attorney exercise independent professional judgment on behalf of his or her client and in EC 5-13 which provides;A lawyer should not maintain membership in or be influenced by any organization of employees that undertakes to prescribe, direct, or suggest when or how he should fulfill his professional obligations to a person or organization that employs him as a lawyer. Although it is not necessarily improper for a lawyer employed by a corporation or similar entity to be a member of an organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his employer, tree from outside influences.As ABA Inf. 1325 noted with respect to EC 5-13:It is apparent …that concern is expressed that a lawyer belonging to an association of employees or a union is not unlikely to be confronted with a choice between acquiescing or assisting in certain union activities and violating certain Disciplinary Rules such as DR6-101(A)(3), proscribing neglect of a legal matter entrusted to a lawyer, DR 7-101(A)(2), forbidding a lawyer to intentionally fail to carry out a contract for employment with a client, and DR 7-101(A)(3), prohibiting a lawyer to intentionally prejudice or damage his client during the course of the professional relationship.See also NY. City 82-75 (ethical obligations of attorneys employed by Legal Aid Society when their union calls a strike)We now reach the same conclusion as ABA Inf. 1325. While lawyers are not prohibited from union membership, they remain first and foremost lawyers. Consequently, “[l]awyers who are union members are required, the same as all other lawyers, to comply with all Disciplinary Rules at all times; and lawyers who are union members should not permit the organization to prescribe, direct or suggest how to fulfill one’s professional obligations, but should be vigilant at ail times to safeguard one’s fidelity to employer free from outside influences. “ABA Inf. 1325 If a conflict arises between union membership and a lawyer’s ethical obligations under the Code, the lawyer must withdraw from the union or from the representation, or, if it is obvious that he or she can adequately represent the client (see DR 5-105(G)), must obtain the informed consent of the client to continue the representation. NY City 79-55 (1980) (if at any time membership of a lawyer in a union affects or reasonably may affect his or her professional judgment, the lawyer must choose between continuing the union membership and continuing to represent the client affected, unless the informed consent of the client is obtained); D.C. Op 112 (1982), ABA/BNA Lawyer’s Manual on Professional Conduct 801:2306 (agency attorneys who join a union may not continue to work for the agency if union membership creates a financial or personal interest which will or may affect the attorneys’ professional judgment). Thus, if a conflict arises between union membership and a lawyer’s ethical obligations under the Code, the lawyer must disclose the conflict to his or her client and, if the client is not a public body and if it is obvious that he or she can adequately represent the interests of the client, obtain the client’s informed consent to continue the representation. If the lawyer’s continued membership in the union will interfere with his or her ability to serve the client independently, the lawyer must also withdraw from the union before continuing his or her representation.Because a public body may not give its consent to a conflict, NY State 450 (1976), the lawyer is left with no alternative in such a situation. He or she must either decline the representation or resign from the union.The answer to the second question is dependent upon whether or not the lawyer representing the State is a union member subject to the same collective bargaining agreement as the State employee. A lawyer union member may not represent the State in disciplinary proceedings against other State employees brought under a collective bargaining agreement to which the lawyer is also subject. In such a situation there is a real danger that the union may attempt to prescribe, direct or suggest the course of the lawyer’s conduct See DR5-105(A). At the very least such a situation would create the appearance of impropriety in violation of Canon 9.If, however, the lawyer is simply an agency shop member, or if the collective bargaining agreement involved is not one to which the lawyer is subject, these concerns are not present to the same degree Therefore, such a lawyer is not specifically prohibited from representing the State in a disciplinary proceeding brought under a collective bargaining agreement, except where the lawyer finds that he or she is unable to exercise independent professional judgment.CONCLUSIONFor the reasons stated, and subject to the qualifications set forth above, a lawyer may be a member of a union that has non-lawyer members. However; a lawyer union member may not represent the State in disciplinary proceedings against other State employees brought under the same collective bargaining agreement to which the lawyer is subject A lawyer who is an agency shop member or who is not subject; to the same collective bargaining agreement as the State employee may represent the State in such proceedings provided his or her independent professional judgment is not affected.

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