ETHICS OPINION 645-1975 RIGHT OF STAFF LAWYERS OF A LEGAL AID SOCIETY TO STRIKE

NUMBER 645

QUESTION.

 

The opinion of this Committee has been requested with respect to the ethical aspects of a strike by lawyers who are employees of a legal aid society.

 

For the purposes of this opinion we assume the facts as hereinafter stated:

 

The society is a non-profit organization, supported by funds received from philanthropic institutions, the general public and to a substantial extent from the municipality in which it is located and other governmental sources. It has an agreement with the municipality under the terms of which the society has undertaken to supply counsel to those indigents charged with crimes who request such services and the municipality supplies all of the funds for this purpose. The lawyer employees, who are salaried, are apprised of the agreement with the municipality.

 

In criminal matters, the court assigns a case to the chief of the society’s criminal division and he designates a staff lawyer to represent the indigent person. Civil matters are assigned to staff lawyers directly by the society.

 

The issues involved in the strike are (i) hours, pay and working conditions of the lawyer employees, and (ii) the society s system for providing legal representation. With respect to the latter, the union contends that the society’s practice of assigning different lawyers to the same client at various stages of criminal proceedings deprives the client of continuous personal representation to which he is entitled, and that to require the lawyers to cooperate in such fragmentation of services makes it impossible for them to render proper legal representation in accordance with their obligation under the Code of Professional Responsibility. It also contends that in criminal cases the physical surroundings in which the indigents consult with them deprive the clients of necessary privacy and thus the opportunity to repose confidences and secrets in the lawyers who represent them.

 

The society contends that it does not control the facilities for conferences in the criminal courts, that it does not have the financial ability to provide the number of additional lawyers required to supply greater continuity of representation and that the only source for additional funds would be the financially hard pressed municipality, with which it has the contract to provide services to indigents.

 

The union’s position is that the right to strike is such a fundamental right of all organized employees that no bar association, by- adoption of a code of ethics or otherwise, has the power to limit that right.

 

The question to be resolved is whether, or to what extent, it is ethically proper for lawyer employees of a legal aid society to engage in a strike,

 

OPINION

 

This Committee does not pass on issues of law, but for the purposes of this opinion it does not question the right of lawyer employees to belong to a labor union composed of lawyers or to engage in collective bargaining through such a union for the purpose of negotiating wages, hours and conditions of employment. It may also be true that the employees have the right, through their union (i) to negotiate with the employer with regard to the terms and conditions on which the society should deal with the municipality or the manner in which, as a matter of management, the society carries out its contractual obligations to supply legal services to indigent defendants, or (ii) to exert pressure on the municipality to supply more funds to the society to permit it to manage its affairs in the manner urged by the union. The latter activities may, however, be outside the scope of the employees’ collective bargaining rights.

 

Also, the Committee does not question that lawyer employees have the legal right to strike. But, as in the case of all rights, the right to strike is not an absolute and wholly unrestricted right exercisable irrespective of rights possessed by others and irrespective of the duties and obligations assumed by the person who has the right. The public interest dictates that some rights and duties take precedence over others depending on the circumstances. Also, restraints may be imposed on the manner in which the right to strike is exercised. It cannot legally be exercised by violence or in any other manner that encroaches seriously on the fundamental rights of others.

 

When a lawyer elects to become a member of the bar he becomes an officer of the court and a part of the judicial system and he thereby assumes obligations, not imposed on other citizens, both to the court system and to the public. One of these is the duty not to “engage in conduct that is prejudicial to the administration of justice” DR 1-102 (A)(5). This duty is also imposed in the same language in Sec. 90(2) of the Judiciary law of the State of New York. Also, when a lawyer undertakes to represent a client he may “not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, allowing time for employment of other counsel.” DR 2-110(A)(2). In addition DR 6-101(A)(3) forbids a lawyer to “neglect a legal matter entrusted to him.”

 

In our opinion these duties, being obligations to the judicial system, to the public and to clients take precedence over any right of lawyers to strike against their employer. Also, once a particular indigent client has been assigned to a staff lawyer by his employer he may not refuse to take whatever steps are reasonably necessary to protect the client from foreseeable prejudice.

 

But beyond these duties, it must be recognized that the society is a unique organization. By reason of its purpose to afford legal services to the poor of the municipality it owes an obligation, not alone to persons for whom it is already engaged on specific matters, but also to persons who are relying on it for professional services in the future. This obligation is shared by the individual members of the professional staff of the society. The staff lawyers also have a duty to the judicial system which makes them ethically obligated not to participate in action either individually or in concert with others which materially interferes with the operation of the courts.

 

Accordingly, staff lawyers of a legal aid society cannot ethically exercise their right to strike if doing so either disrupts the proper functioning of the courts and the judicial system or deprives indigent defendants of their right to proper representation and a speedy trial.

 

June 2, 1975