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ETHICS OPINION 376-1947
NUMBER 376 1947
The Association of the Bar of the City of New York and the New York County Lawyers’ Association Committees on Professional Ethics.
These Committees have considered an inquiry as to whether it would be proper for lawyers, employed for the performance of professional services in the legal department of a mutual casualty insurance company, to become members of and to be represented by a labor union winch will include persons other than lawyers.
The Committees are of the opinion that it would not be proper for lawyers to join such a union and be represented by it.
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.
The obligations and duties which arise from the dual relationship of lawyer to court and client have been defined, in part, in the Canons of Professional Ethics adopted by the American Bar Association. These Canons represent the minimum standards acceptable from lawyers. No lawyer should place himself in a position in which his duties under these Canons are inconsistent with other duties voluntarily assumed.
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, If. for example, in response to instructions from his union, he should participate in a strike against his employer or should interfere with the conduct of the professional business of his employer by engaging in picketing, his conduct, whether the relationship of attorney and client exists between the attorney and his employer or between the attorney and clients of his employer, would constitute a violation of the following provisions of 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 direct to the client.
His conduct in the foregoing situations would also be in conflict with his duty to his client under the following provision of Canon 44:
The right of an attorney or counsel to withdraw from employment once assumed arises only from good cause. Even the desire or consent of the client is not always sufficient. The lawyer should not throw up the unfinished task to the detriment of his client except for reasons of honor or self-respect.
A lawyer is a fiduciary. If he joins the union, he cannot escape being subjected to a struggle between loyalties pulling him in opposite directions. The question is not whether he may resist the temptation to act adversely to his client, but whether he should voluntarily subject him to such temptation. It is the tug on his conscience that is significant, and should be avoided.
This opinion of the Committees applies to lawyers engaged in the performance of professional duties, regardless of whether they receive compensation by salary or fee. It is not within the province of these Committees to pass upon the legal right of a lawyer to join a labor union; or the propriety of joining a union by a lawyer engaged in activities other than those involving the relationship of attorney and client. This opinion does not purport to pass upon the propriety of a lawyer’s joining or being represented by a union consisting wholly of lawyers.
Pursuant to Section 22 of Article XIII of the By-Laws of The Association of the Bar of the City of New York, the Committee on Professional Ethics of that Association states that the foregoing opinion is that of the Committee alone, and has not been passed upon by the Association.