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The A.B.A., Informal Ethics Opinion No. 917 holds that a lawyer employed full time by the Federal Government would be guilty of improper conduct in becoming a member of a labor union along with non-attorneys.
However, the facts concerning employment of an attorney by the City of New York are somewhat unique, and it is requested that your committee consider them.
The City of New York is now setting up a system whereby all employees ‘ benefits, rights, salary, etc., will be subject to collective bargaining. The salary and similar items concerning attorneys will be by contract with the union which has the collective bargaining certificates of representation of a majority of the City attorneys (presently the City Civil Service Bar Assn., which is a union composed exclusively of attorneys employed by the City of New York). The hours of employment, amount of vacation and sick leave, and similar bargaining will be by contract with the union having the certificates of representation of a majority of all the city employees (presently District Council 37, ASCME, AFL-CIO).
The questions presented are as follows:
(1) Would it be permissible for attorneys employed by the City of New York to participate in the formation of, and join, a union the membership of which will be limited to members of the Bar?
(2) Would it be permissible for attorneys employed by the City of New York to participate in the formation of, and join, a union the membership of which will consist in part of members of the Bar and in part of employees of the City who are not members of the Bar?
Question No, 1 is answered in the affirmative. The relationship of a lawyer employed by a governmental agency to his client in terms of compensation is different from that of the lawyer who represents a number of different clients in his daily practice, In the former situation, the lawyer is paid a salary usually established by a Civil Service Commission or by reference to wages and fringe benefits paid other employees of the employer. In view of this, and of the fact that such governmental lawyers have one client only, and assuming the consent of the employer, it is our opinion that such lawyers may join a union or association limited solely to other lawyer employees of the same employer and that such organization may represent its lawyer members in negotiating wages, hours and working conditions. It is recommended that any such organization include, at the least, a statement in its constitution or by-laws which recognizes that the lawyers must respect and be bound by the Canons of Ethics. (See Informal Opinions Nos. 917 and 986 of the Committee on Professional Ethics of the American Bar Association.)
Question No. 2 raises different problems. In this case the union will consist in part of employees of the City who are not members of the Bar and who are not therefore subject to the Canons of Ethics.
In Opinion No. 376 (a joint opinion of this Committee and of the Committee on Ethics of the Association of the Bar of the City of New York) it was stated that it would be improper for a lawyer-employee when employed in a professional capacity voluntarily to join a union composed of both lawyers and non-lawyers because of the possible conflicts which might arise as between the lawyer’s duties under the
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In that joint opinion, it was stated that:
“A lawyer is an officer of the Court and a member of an honored and learned profession which imposes upon its members high standards of conduct. He is also a custodian and protector of the rights of his client. He can secure and retain the close confidence of his client, which is essential to the relationship of attorney and client, only if he scrupulously places the interests of his client above his own interests and if he avoids the assumption of obligations which may come into conflict with his obligations to this client.
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“A lawyer joining a union which includes persons other than lawyers will, at times, be required to further the interests of other union members, lawyers and non-lawyers, of the same union or an affiliated union, by action which may be detrimental to the best interests of his client and which may violate the Canons of Professional Ethics.”
The joint committee quoted from Canon 35:
“The professional services of a lawyer should not be controlled or exploited by any lay agency personal or corporate, which intervenes between client and lawyer. A lawyer’s responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer’s relation to his client should be personal, and the responsibility should be directly to the client. Charitable societies rendering aid to the indigent are not deemed such intermediaries.”
The lawyer-employee must bear in mind that in joining any union he is being placed in a delicate position and that he will not have the same freedom of action as non-lawyer members of a union. The lawyer-employee has responsibilities and duties as an officer of the Court and a member of an honored and learned profession which through The Canons of Professional Ethics imposes upon him a much higher standard of conduct than would be applicable to lay employees. For example, it is the duty of the lawyer-employee to uphold and support the law (Canon 32), to uphold the honor and maintain the dignity of the profession (Canon 29), to represent his employer-client with undivided fidelity and to refrain from divulging secrets or confidences given to him in his professional capacity (Canon 6). He cannot permit the union in any way to direct the performance of his professional duties (Canon 35), nor at the direction of the union abandon, even temporarily, an unfinished professional task to the detriment of his employer-client unless compelled to do so for reasons of honor or self-respect as set forth in Canon 44.
In short, a lawyer-employee cannot engage in any course of conduct which would be unethical for him as a lawyer even though directed to do so by the union.
In his book on Legal Ethics, Henry S. Drinker states (p. 160): “A lawyer may not belong to a Tabor union which includes persons not 1awyers. By so doing he surrenders his power of independent action,”
For the foregoing reasons we urge that the New York County Lawyers’ Association strongly recommend to the appropriate New York City authorities that all terms of employment of lawyers working in a professional capacity for the City, including compensation, hours, vacation and fringe benefits, be negotiated by the City directly with the lawyers or a union or association composed solely of lawyers The City should be advised of our position that it would be unwise for the City to force lawyers into a position where, because of their professional responsibilities and their adherence to the Canons of Professional Ethics, they might have to refrain from joining the union and thereby lose representation in respect of the terms of their employment.
Until the City makes a determination in this regard, this Committee believes that it would be inappropriate to render a definitive answer to question No. 2.
February 8, 1968