Can a union's lawyer also serve as counsel to a joint labor-management committee that investigates whether union members' workers' comp claims are made in good faith?

Plain-English summary

The inquirer was counsel for a union and asked whether he could also serve as counsel to a labor-management committee jointly formed by the employer and the union. The committee was created to investigate the good faith of workers' compensation claims filed by about half of the employer's employees, who were union members. The inquirer, as committee counsel, would conduct the investigation and render a report. Both the employer and the union had consented to his representation of the committee after full disclosure.

The Committee noted that the inquirer represented the union members on grievances, disciplinary problems, and arbitration, so the members were his clients; it added that DR 2-103(D)(4)(d) emphasizes that an organization may furnish legal services to members only where it is clear the member, not the organization, is the client. Although the parties had agreed that no disciplinary action would follow a claim found nonmeritorious, the Committee observed that any report finding a claim nonmeritorious would not be in that employee's interest.

The Committee concluded that the inquirer was being asked to serve a committee set up by two parties whose interests were at least potentially adverse to third parties, some of whom were, had been, or were contemplated to be his clients. Relying on its Opinion 362, which held that where the interests of a union and one of its members represented by the same attorney come into conflict the attorney must withdraw completely, the Committee held that the inquirer should not serve as counsel to a committee investigating the actions of some of his clients.

Currency note

This opinion was issued in 1981, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The conflict and organization-as-client rules it applied (DR 5-105 and DR 2-103(D)) now correspond broadly to RPC 1.7 and RPC 1.13. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the union's lawyer also counsel the labor-management committee?

A: No. The opinion concluded he could not, because the committee investigated the good faith of members' comp claims and its interests were potentially adverse to those members, who were his clients.

Q: Did the parties' consent cure the conflict?

A: No. Even though the employer and union consented after full disclosure, the opinion held that a report finding a member's claim nonmeritorious would not be in that member's interest, so the conflict remained.

Q: What rule did the opinion rely on?

A: It relied on Opinion 362, which held that when a union's interests and a member's interests, both represented by the same attorney, come into conflict, the attorney must withdraw from the matter completely.

Background and rules framework

The opinion applied DR 5-105 on conflicting representations and DR 2-103(D)(4)(d), which provided that an organization may furnish legal services to members only where the member, not the organization, is the client. In current New Jersey terms the analysis maps onto RPC 1.7 (concurrent conflicts) and RPC 1.13 (organization as client). The controlling point was that investigating members' claims placed the lawyer against his own clients, a conflict that disclosure and consent by the union and employer could not resolve.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest); decided under former DR 5-105
• MR 1.13 / NJ RPC 1.13 (organization as client); decided under former DR 2-103(D)(4)(d)

Other opinions cited:

• NJ ACPE Opinion 362, 100 N.J.L.J. 1 (1977) (attorney must withdraw completely when union and member interests conflict)

See also

• NJ ACPE Op. 486: Representing Parent and Child Co-Defendants
• NJ ACPE Op. 527: Dual Representation of Defendant Physician and Hospital
• NJ ACPE Op. 547: Sewer Authority Counsel Whose Partner Represents a Housing Corporation

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp484-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

107 N.J.L.J. 557, June 18, 1981

OPINION 484

Conflict of Interest Union Counsel also Serving Labor-Management Committee Investigating Workers' Compensation Claims

Inquirer asks whether he may serve as counsel to a labor management committee formed jointly by an employer and by the union representing the employer's employees. Inquirer is counsel for the union. The committee has been formed to investigate the good faith of workers' compensation claims filed by about 50% of the employer's employees, members of the union.

Inquirer states that it has been determined by both the employer and the union that it is in their separate and mutual interest that this matter be investigated. The inquirer, as committee counsel, would conduct the investigation and render a report. It is further stated that both the union and the employer have consented to the representation of the committee by the inquirer after full disclosure of the factual background and its legal implications. The inquiry, however, also discloses that interests of the compensation claimants - members of the union - further complicate the problem of dual employment in this situation. Inquirer states that local (X) refers all of their legal questions to us, and we represent the members with respect to grievances, disciplinary problems and at arbitration. Such members are, therefore, to be deemed the inquirers clients. Even if this were not self-evident, the provisions of DR 2-103(D)4(d) emphasize that an organization properly may furnish legal services to its members only where it is clear that the member and not the organization is the client.

While it is represented that it has been agreed that if a claim is determined to be nonmeritorious, no disciplinary action will be taken against the employee, still it is evident that any report finding an employee's claim to be nonmeritorious will not be in the interest of that employee. It thus appears that the inquirer is being asked to serve as counsel to a committee set up by two parties with interests, at least potentially, adverse to third parties, at least some of whom are, have been, or in the future are contemplated to be the inquirer's clients.

This Committee's Opinion 362, 100 N.J.L.J. 1 (1977), made it clear that where the interests of a union and one of its members represented by the same attorney) come into conflict, the attorney must withdraw from the matter completely. In light of the principles therein set forth, it is clear that the inquirer should not serve as counsel to a committee investigating the actions of some of his clients.