“As the attorney for the Blank Association, Department of _of the City of New York, an ethnic association of employees of the Department of____, I was requested to prepare an information sheet which its members would receive for their personal use. The Blank Association has approximately 1300 members, and may be classified as a fraternal and employees association. I thereafter prepared the same, the contents being substantially the same as the enclosed proof [set forth below], except that Item #9 was not included therein. I had this form copyrighted and thereafter transmitted it to the Association’s President. Recently, the enclosed proof was delivered to me for approval before printing, with Item #9 being added there to I must assume that in the event that a member contacted the delegate to the Association for legal assistance as indicated in Item #9, he would be referred to my offices as the attorney for the Association.
“I would appreciate your advising me as to whether the inclusion of Item #9 would be contrary to any of the rules or canons of ethics.”
Copy of Proof Enclosed with foregoing Question
GLOVE COMPARTMENT COMPANION
Dept. of City of New York
IN EVENT OF ACCIDENT
Call the police to the scene.
Fill out all information in this form.
Render assistance and aid to injured.
If injured, advise police at scene.
Contact your personal attorney for further advice.
Report accident to your insurance representative immediately regardless as to the minor nature of the accident, though you were not at fault, and no person claimed injury.
Do not speak to any person or representative or fill out or sign any forms without obtaining consent of your Attorney.
File Motor Vehicle Report with Bureau of Motor Vehicles if personal injuries or property damages exceeding $150.00 occurred, within 10 days of accident.
Call your Steuben Delegate for information on Legal assistance as soon as possible.
(Copyright LEE J. ROBBINS, 1965)
Inclusion of Item 9 in the information sheet to be sent to the members of the association under circumstances where the association will refer members to the lawyer would seem to place the proposed plan in violation of Canons 27 (Advertising: Direct or Indirect), 28 (Stirring up Litigation, Directly or Through Agents), 35 (Intermediaries), and 47 (Aiding the Unauthorized Practice of Law), as interpreted by this Association (see Opinion 47, subd. VIII-c) and by The Association of the Bar of the City of New York (see Opinions 359, 763 and 7 99), (See also Rule VIII, Special Rules Regulating Conduct of Attorneys of the Appellate Division First Department, and New York Penal Law Sections 270-a, 280)
Howevert three United States Supreme Court decisions–NAACP v. Button, 371 U. S. 415 (1963); Brotherhood of Railroad Trainmen v. Commonwealth of Virginia, 37 7 U,S. 1 (1964); and United Mine Workers of America v Illinois State Bar Association. et al, 389 U. S. 217 (1967)–make clear that an association of employees has the right to hire an attorney to whom employee-members are referred for handling of their individual affairs. In each case the Supreme Court rejected the contentions of the local state bar association involved that such activity by the associations and participation by the lawyers contravened the applicable Canons and other rules regarding unauthorized practice of the law. In the most recent case in which the Illinois courts barred the United Mine Workers plan whereby a lawyer was hired by the union to handle Individual workmen’s compensation claims of the members, the Supreme Court stated:
“We hold, that the freedom of speech, assembly, and petition guaranteed by the First and Fourteenth Amendments gives petitioner the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights.
. . . . .
That the States have broad power to regulate the practice of law is, of course, beyond question. . . . But it is equally apparent that broad rules to protect the public and to preserve respect for the administration of justice can in their actual operation significantly impair the value of associational freedoms. . . . We held [in Button and in Trainmen] the dangers of baseless litigation and conflicting interests between the association and individual litigants far too speculative to justify the [prohibition] by the State. . .” (389 U.S. at 221-3)
In light of these recent cases by the Supreme Court, we believe that the inclusion of Item #9 in the information sheet, and the referral of accident claims to the attorney, would not violate the Canons of Ethics. In so stating, we note that the association is a legitimate one not formed at the instance of the attorney for the purpose of gaining referrals, that the attorney was hired as counsel for the Association, and that Item #9 was not solicited and its inclusion was not initiated by the attorney. Further, we believe it appropriate to add that the attorney must take pains to assure that his representation of any member of the association be conducted with the loyalty and fidelity required by the Canons and by the nature of the professional relationship of attorney-client, and that at the appearance of actual conflict between the association-client and the member-client the lawyer should withdraw from representation of both with respect to the matter giving rise to the conflict.