Can a state-employed lawyer belong to a union with non-lawyer members, and can a lawyer-union-member prosecute disciplinary cases against other state employees in the same union?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
Some New York State lawyers are covered by a collective bargaining agreement, pay agency-shop dues, and have joined a union that also includes non-lawyers; their duties can include representing the State in disciplinary proceedings against other State employees. The committee answered two questions. On union membership, it held the Code does not prohibit a lawyer from belonging to a union, even one with non-lawyer members, provided the lawyer violates no Disciplinary Rule (following ABA Informal Op. 1325). It overruled N.Y. State 93 (1968), decided before the Code, to the contrary.
The committee grounded the limits in Canon 5 and EC 5-13, which caution that a lawyer should not let an employee organization prescribe, direct, or suggest how the lawyer fulfills professional obligations, and must stay vigilant to safeguard fidelity to the employer. It identified the rules a union member must not be pressured into violating: DR 6-101(A)(3) (neglect), DR 7-101(A)(2) (failing to carry out the employment contract), and DR 7-101(A)(3) (prejudicing the client). If a conflict arises between union membership and the lawyer's ethical obligations, the lawyer must disclose it and, if the client is not a public body and the lawyer can obviously represent the client adequately, obtain informed consent; where continued membership would interfere, the lawyer must withdraw from the union. Because a public body cannot consent (N.Y. State 450), the lawyer in that situation must either decline the representation or resign from the union.
On the second question, the committee held that a lawyer-union-member may not represent the State in disciplinary proceedings against other state employees under the same collective bargaining agreement to which the lawyer is subject, because of the real danger that the union may attempt to direct the lawyer's conduct (DR 5-105(A)) and, at the least, the appearance of impropriety (Canon 9). A lawyer who is merely an agency-shop member, or who is not subject to the same agreement, is not barred, except where the lawyer cannot exercise independent professional judgment.
Currency note
This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (conflicts including personal-interest conflicts now appear at Rule 1.7). It was later modified by N.Y. State 629. Subsequent rule amendments or later opinions may have changed the analysis. 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: Can a government lawyer join a union that also has non-lawyer members?
A: Yes. The committee held the Code does not bar a lawyer from union membership, even a union with non-lawyers, so long as the lawyer violates no Disciplinary Rule, and it overruled the contrary N.Y. State 93.
Q: Can a lawyer-union-member prosecute discipline against a fellow union employee?
A: Not under the same agreement. The committee held a lawyer-union-member may not represent the State in disciplinary proceedings against other employees brought under the same collective bargaining agreement the lawyer is subject to.
Q: Does it matter whether the lawyer is a full union member or just agency-shop?
A: Yes. The committee held a lawyer who is only an agency-shop member, or who is not subject to the same agreement, may handle such proceedings unless the lawyer cannot exercise independent professional judgment.
Background and rules framework
The opinion interpreted Canon 5 and EC 5-13 (independent judgment free of employee-organization influence), DR 5-105(A) and (C) (conflicts and consent), DR 6-101(A)(3) (neglect), DR 7-101(A)(2) and (3) (failing the client), and Canon 9 (appearance of impropriety). The closest current Model Rule analogue is Rule 1.7 (concurrent and personal-interest conflicts).
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest, including personal-interest conflicts)
- NY Canon 5; Canon 9; DR 5-105(A), (C); DR 6-101(A)(3); DR 7-101(A)(2), (3); EC 5-13
Other opinions cited:
- ABA Informal Op. 1325 (1975): lawyers are not per se forbidden to belong to unions
- N.Y. State 93 (1968): the contrary pre-Code opinion, here overruled
- N.Y. State 450 (1976): a public body cannot consent to a conflict
- N.Y. State 629: later modifies this opinion
See also
- NY State Bar Op. 629: Lawyer conflicts among governmental entities
- NY State Bar Op. 743: Lawyer for a labor union as an organization client
- NY State Bar Op. 1149: An agency-shop lawyer representing the government against a union
Source
- Landing page: https://nysba.org/opinion-578/
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