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