Can government lawyers ethically threaten a 'sick out' or a strike as a labor action?

Plain-English summary

The inquiry concerned government lawyers contemplating a "sick out" or strike as a labor action. The committee began by stating that it does not issue opinions concerning the law generally and therefore took no position on whether the actions would be protected under federal or state labor law.

On a "sick out," which the committee understood to mean reporting to a court or governmental employer that illness prevents performance when the lawyers are not in fact ill, it directed the lawyers to RPC 3.3(a), 4.1(a), and 8.4(c) on the duty of candor toward courts, clients, and other parties. It concluded that whatever the lawyers' position under the labor laws, it does not preempt a lawyer's duty of candor as a member of the Bar.

On a strike, which the committee understood to mean refusing to perform job duties to improve a bargaining position over pay and benefits, it directed the lawyers, to the extent a strike would affect ongoing obligations to government clients, to RPC 1.1, 1.3, 1.7(b), 1.15(b) and (d), 3.2, 3.4(c), and 8.4(a), (d), and (e). It again concluded that labor-law rights do not preempt a lawyer's duties to the client in matters the lawyer is handling.

Currency note

This opinion was issued in 1999, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Several rules the opinion cites were renumbered or restructured in the 2006 revisions; in particular, the former RPC 1.15 (declining or terminating representation) became RPC 1.16, so verify the current rule and citation before relying on it.

Common questions

Q: Did the committee say whether a government-lawyer strike is legal?

A: No. The committee said it does not issue opinions on the law generally and took no position on whether the actions would be protected under labor law.

Q: Is falsely calling in sick a problem for a lawyer?

A: The committee directed lawyers to RPC 3.3(a), 4.1(a), and 8.4(c) and concluded that labor-law rights do not preempt a lawyer's duty of candor toward courts, clients, and other parties.

Q: What about a strike that affects a government lawyer's pending matters?

A: The committee directed lawyers to the competence, diligence, conflict, and other client-duty rules and concluded that labor-law rights do not preempt the lawyer's duties to the client in matters the lawyer is handling.

Background and rules framework

The opinion applied a set of Washington Rules of Professional Conduct, each corresponding to its ABA Model Rule. For the candor analysis it cited RPC 3.3(a) (candor toward a tribunal, MR 3.3), RPC 4.1(a) (truthfulness to others, MR 4.1), and RPC 8.4(c) (conduct involving dishonesty or misrepresentation, MR 8.4). For the client-duty analysis it cited RPC 1.1 (competence, MR 1.1), RPC 1.3 (diligence, MR 1.3), RPC 1.7(b) (conflict of interest, MR 1.7), RPC 1.15(b) and (d) (the then-numbered declining-or-terminating-representation rule, MR 1.16), RPC 3.2 (expediting litigation, MR 3.2), RPC 3.4(c) (knowingly disobeying an obligation under tribunal rules, MR 3.4), and RPC 8.4(a), (d), and (e) (MR 8.4).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.3 (candor toward the tribunal); Washington RPC 3.3(a)
• ABA Model Rule 4.1 (truthfulness in statements to others); Washington RPC 4.1(a)
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(c), (a), (d), (e)
• ABA Model Rule 1.1 (competence); Washington RPC 1.1
• ABA Model Rule 1.3 (diligence); Washington RPC 1.3
• ABA Model Rule 1.7 (conflict of interest); Washington RPC 1.7(b)
• ABA Model Rule 1.16 (declining or terminating representation); Washington RPC 1.15(b), (d)
• ABA Model Rule 3.2 (expediting litigation); Washington RPC 3.2
• ABA Model Rule 3.4 (fairness to opposing party and counsel); Washington RPC 3.4(c)

See also

• WA Ethics Op. 1871: Government Lawyer Conflict
• WA Ethics Op. 1858: Approval to File a Bar Complaint
• WA Ethics Op. 1854: Hiring a Prosecutor's Ex-Aide

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1069

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1876
Year Issued: 1999
RPC(s): RPC 1.1; 1.3; 1.7(b); 3.3(a); 3.4(c); 4.1(a); 8.4
Subject: Government lawyers threaten "sick out" or strike as labor action

The committee does not issue opinions concerning the law generally, and, therefore, takes no position regarding whether the actions your letter suggests would or would not be protected under federal and/or state labor law.

With regard to a possible "sick out" [of government lawyers in lieu of a strike], we understand that term to mean that the lawyers involved would report to a court or their governmental employer that illness prevents them from carrying out their professional responsibilities when, in fact, they are not ill. You are directed to RPC 3.3(a), 4.1(a) and 8.4(c) regarding the duty of candor toward courts, clients and other parties. Whatever your position under the labor laws may be, we do not believe that it preempts a lawyer’s duty of candor as a member of the Bar.

As for a possible "strike", we understand the term to mean that the lawyers involved would refuse to perform their job duties in an effort to improve their bargaining position with their governmental employer over pay and other job benefits. To the extent that a strike would affect ongoing obligations to your government clients, you are directed to RPC 1.1, 1.3, 1.7(b), 1.15(b) and (d), 3.2, 3.4(c) and 8.4(a), (d) and (e). Again, whatever your position under the labor laws may be, we do not believe that it preempts a lawyer’s duties to the lawyer’s client in matters that the lawyer is handling for the client.