The Florida Bar

July 18, 1961

While it is not improper for an attorney retained by an employees' association to represent the interests of such association, his representation of members individually is precluded by Canon 35 unless the traditional attorney-client relation is preserved and the individual pays the attorney's fees or pays the association on a pro-rata basis for services received.

Caveat: The validity of this opinion may be affected by United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967).

Canon: 35

Chairman Holcomb stated the opinion of the committee:

A member of The Florida Bar inquires of the professional propriety of an attorney representing employees of a retail chain store in negotiations with their employer and with reference to their individual legal problems. We understand the employees would contribute to a central fund on a voluntary basis and that the attorney's compensation would be paid from
the fund in the form of a yearly retainer.

The Committee agrees unanimously that it would not be improper for the attorney to represent the employees as an entity and to receive his compensation from the group as a whole. A majority of the Committee, however, believes it is improper under the circumstances described to render legal services to the individual employees.

The second paragraph of Canon 35 reads:

A lawyer may accept employment from any organization, such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs.

Drinker, Legal Ethics, page 162, presents an analysis of the problem and there points out:

This provision is obviously in furtherance of the admonitions in the first paragraph of the Canon that the lawyer's relation to his client should be personal, his responsibility to him direct, and not subject to the control or exploitation of any lay intermediary intervening between them. Consequences of such intervention, in addition to interference with the lawyer's intimate personal relation to his client, are the tendency to commercialize the profession, and promotion of the unauthorized practice of the law on the part of the organization by providing legal services and advice for its employees and members.

Drinker also observes, however, that Canon 35 does not preclude counsel from representing individual employees provided such employment has not been the result of improper solicitation and provided the relationship is direct and personal between employee and counsel (excluding the group) and the service is paid for by the individual client
or pro-rated among the group.

Perhaps it would be permissible to follow the plan outlined if it were revised to provide for a pro-ration of the contribution based upon the services required by and rendered to the individual.

[Revised: 08-24-2011]