Washington Lawyer

Legal Ethics: Whether a Nonlawyer Union Employee May Supervise a Union Attorney

From Washington Lawyer, December 2002

(Opinion 314, which was discussed in the December 2002 “Speaking of Ethics” column, addresses the complex issue of attorney relationships, obligations, and duties of loyalty when working for an organization (in this case a union) and also for its members. Rules 1.2,1.7, 1.8, 1.13, 4.3 are “applicable”.)


Rule 5.4(c) of the District of Columbia Rules of Professional Conduct provides that “[a] lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” A labor union inquires whether the rule is violated “if a nonlawyer union employee supervises a union attorney who (1) represents the union in any matter or (2)represents one of the union’s members in a matter that is within the collective bargaining process.” The union also inquires whether the result would be different if a union attorney represents a member in a statutory proceeding rather than a proceeding arising out of the collective bargaining process. …(S)imilar issues may arise for lawyers employed by a corporation, a trade association, or another type of organization.

A nonlawyer union employee may supervise a union attorney who is representing the union itself. Rule 5.4(c) does not preclude such an arrangement because it deals with the situation where a person (including an entity) “recommends, employs, or pays the lawyer to render legal services for another. . . .” Here the employing organization is the client. …

Rule 1.13(a) of our Rules of Professional Conduct provides that “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” Those “constituents” may well be lay persons, and a corporation or a labor union may decide …that it will assign someone who is not a lawyer to supervise its legal staff. …

Of course this does not mean that a lawyer must, or even may, surrender his professional judgment when representing a client that happens to be an entity. Rule 1.2 generally defines the scope of representation, and comment [1] makes it clear that “a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so.” Indeed, a lawyer is obliged to withdraw from a representation if she concludes that carrying out the client’s wishes will violate the Rules of Professional Conduct. Rule 1.16(a)(1). …

The inquirer also asks how Rule 5.4(c) applies when the union lawyer represents one of the union’s members and not simply the union itself. The answer depends on the context in which the representation occurs, and on whether there is an attorney-client relationship between the union lawyer and the union member.3 As we recently discussed in Opinion No. 316, the existence of an attorney-client relationship is determined by the substantive law of the relevant jurisdiction, not by applying the Rules of Professional Conduct. …Moreover, “[t]he existence of an attorney-client relationship is an issue to be resolved by the trier of fact and is predicated on the circumstances of each case.” Id.

Substantive labor law also affects the analysis when the union is representing one of its members in connection with a grievance under the collective bargaining agreement. It is generally recognized that the grievance belongs to the union, not its member, but that the union owes a duty of fair representation to its member. …

If it is true that the union is the only client, then the union lawyer is not rendering legal services “for another,” and Rule 5.4(c) does not come into play.

This topic has generated a great deal of debate. …

This Committee, of course, does not opine on questions of substantive law. However, the obligations of the union attorney under the Rules of Professional Conduct will vary depending on whether an attorney-client relationship exists. If the lawyer does not have an attorney-client relationship with the union member, then he likely will have an obligation to clarify the nature of their relationship. This is true even if there is no apparent conflict between the interests of the union and those of its member…

The need for clarification increases as the risk of conflict grows. A lawyer shall not “[g]ive advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.” Rule 4.3(a). Furthermore, “[i]n dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a lawyer [representing the organization] shall explain the identity of the client when it is apparent that the organization’s interests may be adverse to those of the constituents with whom the lawyer is dealing.” …Such clarification will often be necessary when grievances are being presented under a collective bargaining agreement. …

If the lawyer represents both the union and its member, then conflicts of interest may arise. See generally Rule 1.7(b). …

If the lawyer represents the union member (as part of a dual representation4), Rule 5.4(c) would come into play and would forbid the lawyer to allow a union official (whether an attorney or not) “to direct or regulate the lawyer’s professional judgment in rendering such legal services.” Thus, the application of Rule 5.4(c) will depend upon whether there is an attorney-client relationship between the union lawyer and the union member.

The third part of the inquiry focuses on the situation where a union attorney represents a member in a matter that does not arise out of the collective bargaining process. This might occur, for example, through a legal services program where an attorney paid by the union drafts a will, handles a divorce, or litigates a personal injury suit. These situations would not be impacted by federal labor law, and one would generally expect that an attorney-client relationship will be established between the union lawyer and the union member. … Under Rule 5.4(c) the lawyer may not permit a union official “to direct or regulate the lawyer’s professional judgment in rendering such legal services.” …

Inquiry No. 01-4-8
Adopted: June 2002