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BOARD OF GOVERNORS ADVISORY ETHICS OPINION (77-15)
May 13, 1978
On May 13, 1978, the Board of Governors issued the following advisory opinion to supersede any contrary views expressed in prior opinions of the Professional Ethics Committee (including Opinion 77-15); to acknowledge the Board's continuing policy of being open to consider petitions to modify advisory opinions of the Professional Ethics Committee; and to allay the concerns of lawyers who feared disciplinary proceedings by reason of Opinion 77-15.
CPR: EC 6-13; DR 6-101(A)(3); DR 7-101(A)(2), (3)
Opinion: ABA Informal 1325
President Troutman stated the opinion of the Board:
A civil action has been brought in the United States District Court for the Northern District of Florida . . . [parties omitted]. The action challenges Advisory Opinion 77-15 of the Professional Ethics Committee of The Florida Bar which, in summary, advises against government-employed members of The Florida Bar joining a labor union composed of lawyer and nonlawyer employees.
In such action . . . [two lawyers] state that they are members of such a mixed union and fear that they will be disciplined by The Florida Bar in view of Advisory Opinion 77-15. . . . [A third lawyer] states that he would join such a union but has not done so because of Advisory Opinion 77-15.
. . . [E]xercising its inherent authority to reserve, rescind or modify any of the Advisory Opinions of the Professional Ethics Committee of The Florida Bar, the Board promulgates the following Advisory Ethics Opinion of the Board of Governors of The Florida Bar for the guidance of members of The Florida Bar in construing the Code of Professional Responsibility and the Integration Rule of The Florida Bar. This opinion supersedes any contrary view expressed in prior opinions of the Professional Ethics Committee of The Florida Bar to the extent inconsistent herewith. Accordingly, the Board of Governors acknowledges its continuing policy of being open to consider petitions to modify Advisory Opinions of the Professional Ethics Committee of The Florida Bar.
We do not think Advisory Opinion 77-15 is without merit, and EC 5-13 should be recognized. That Ethical Consideration provides:
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 influences.
However, on the issue of a government lawyer joining a labor union composed of lawyer and nonlawyer employees, we concur with ABA Informal Opinion 1325 to the extent that it advises that there is no violation of the Code of Professional Responsibility subjecting the government lawyer to disciplinary action simply by reason of his joining a union.
At the same time we note certain ethical difficulties which might exist from certain activities incident to union membership, especially to the extent that the union may on particular occasions oppose certain positions of management, which is the lawyer's client. For example, as pointed out in the foregoing ABA Informal Opinion, such a lawyer belonging to a union may be considered not unlikely to be confronted, on occasion, with a choice between acquiescing or assisting in certain union activities and violating certain disciplinary rules, such as, DR 6-101(A)(3), proscribing neglect of a legal matter entrusted to a lawyer, DR 7-101(A)(2), forbidding a lawyer to intentionally fail to carry out a contract for employment with a client, and DR 7-101(A)(3), prohibiting a lawyer from intentionally prejudicing or damaging his client during the course of the professional relationship.
If faced with a choice between following the Code of Professional Responsibility or following a union's wishes, it is clear that a government lawyer who is a member of the union must follow the Code and the Disciplinary Rules thereof as promulgated by the Supreme Court of Florida.
Therefore, we advise that the above-referenced lawyers are not subject to disciplinary action on the facts referred to in their foregoing complaint concerning union membership, nor were they subject to disciplinary action simply by reason of Advisory Opinion 77-15.