Ethics Opinions

Opinion No. 76-13

Summary: A lawyer who is paid a salary and is employed by a city rent control administration may join a union for the purpose of negotiating wages, hours and working conditions with his employer-client, unless the collective bargaining agreement, the constitution, or the bylaws of the union provide that all members of the union (if it is limited to other lawyer-employees), or a separate class of members (if the union is established for lawyer-employees only) would have the right (a) to strike, (b) to withhold services for any reason, (c) to divulge confidences and secrets of the employer-client, or (d) to violate any of the other Disciplinary Rules in Rule 3:22 of the Supreme Judicial Court then in force, or as subsequently amended.

Facts: A city rent control administration is in the process of adopting a union for staff personnel. A and B, who are two of the attorneys in the office, are classified as "management." C, who is the third attorney, prosecutes (civilly and criminally) rent control violations, and occasionally defends decisions of the administrator, in the courts. He is eligible for membership in the union. C inquires whether it would be unethical for him (1) to be a member of the union, (2) to decline membership in the union but pay an "agency fee" to it, which would bind him to the provisions of any union contract, or (3) to join a separate class of union members established for practicing attorneys of the staff, with separate provisions (including the Canons of Ethics and Disciplinary Rules in S.J.C. Rule 3:22) to apply to all members of this class.
Discussion: Opinions (both formal and informal) of the ABA Committee on Professional Ethics from 1947 to 1968 construing the former Canons of Professional Ethics have consistently held that a lawyer employed as a salaried employee to perform legal services for a single client-employer, agency or organization would violate former Canon 35 if he became a member of a labor union which had both attorney and non-attorney members. See Formal Opinion 275 (9/20/47) and Informal Opinions 917 (1/25/66), 968 (7/3/67) and 1029 (2/19/68). Canon 35 provided in relevant part:
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.
But in Informal Opinion 986 (7/3/67) the committee further said:
It is our opinion, therefore, that lawyers who are paid a salary and who are employed by a single client-employer may join an organization limited solely to other lawyer-employees of the same employer for the purpose of negotiating wages, hours and working conditions with the employer-client so long as the lawyer continues to perform for his employer-client professional services as directed by his employer and in accordance with the provisions of the Canons of Ethics. Such a lawyer would not have the right to strike, to withhold services for any reasons, to divulge confidence or engage in any other activities as a member of such a union which would violate any canon.
The Code of Professional Responsibility adopted by the ABA House of Delegates to become effective January 1, 1970 (of which the Canons and Disciplinary Rules were adopted by the Supreme Judicial Court in Rule 3:22 to become effective October 2, 1972) does not contain in its disciplinary rules any general provision like those in former Canon 35. The subject of union membership is specifically dealt with in EC 5-13 (which is not a disciplinary rule) as follows:
A lawyer should not maintain membership in or be influenced by any organization of employees that undertakes to prescribe, direct or suggest when or how he should fulfill his professional obligations to a person or organization that employs him as a lawyer. Although it is not necessarily improper for a lawyer employed by a corporation or similar entity to be a member of an organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his employer, free from outside influence.
We interpret our Canons and Disciplinary Rules to permit C to join the proposed union to represent him in negotiations with his employer-client, unless the terms of the collective bargaining agreement, constitution or bylaws of the union require him to violate any of the Disciplinary Rules of the Code. He can have no duty to strike, except as qualified by DR 2-110, which limits a lawyer's right to withdraw from employment, by DR 2-110(A)(2) which specifically requires "giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with all applicable laws and rules," and by DR 6-101(A)(3), which provides that a lawyer shall not "neglect a legal matter entrusted to him." Nor is there any way under the Disciplinary Rules by which a lawyer, having withdrawn from employment by a strike or otherwise, can use the power of the union to require that he be rehired after the withdrawal, for such a course would be a violation of DR 2-103(B). It is also clear that any requirement that a lawyer member of the union should (or may) disclose confidences and secrets of his client-employer to the union would violate DR 4-101(B).
We, therefore, answer C's questions (1) and (2) in the negative, if the terms of the collective bargaining agreement, constitution or bylaws of the union require him to violate any of the Disciplinary Rules of the Code. We answer C's question (3) in the affirmative. Joining a separate class of union members limited to lawyers, with the Canons of Ethics and Disciplinary Rules in S.J.C. Rule 3:22 applying to all members of the class, would not require C to strike, to withhold services for any reason, to divulge confidences and secrets, or to engage in any other activities which would violate any of the Disciplinary Rules in Rule 3:22 of the Supreme Judicial Court now in force or as subsequently amended.
We believe this opinion to be consistent with G.L. c.150E, "Public Employees." Under S1, a city rent control administration appears to be a "public employer," and lawyers appear to be "professional employees." Under S3, it is provided that "no unit shall include both professional and non-professional employees unless a majority of such professional employees vote for inclusion in such a unit," and under S2 "Employees shall have the right of self organization," etc., free from interference, restraint or coercion. Under S9A, "no public employee or employee organization shall engage in a strike," etc. Under our committee's rules, we do not give an opinion "which relates solely ... to a question of law," and accordingly we express no opinion as to the result, if it should be determined that our application of the Disciplinary Rules in this case was inconsistent with G.L. c.150E in some respect.


Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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