Ezel / Ethics Opinions / NYSBA
NYSBA 2018-04-10

Can a government lawyer who pays union dues as an agency-shop member prosecute discipline cases against employees that union represents?

Short answer: Yes, unless in a given matter a reasonable lawyer would find a significant risk that agency-shop status would impair the lawyer's judgment for the agency. If such a risk exists, the lawyer may still act with the agency's informed written consent.
Currency note: this opinion is from 2018
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1149: Agency-shop lawyer against union members

Short answer: A government lawyer who is only an agency-shop member of a union may represent the agency in discipline cases against union-represented employees, unless in a particular matter a reasonable lawyer would find a significant risk that the agency-shop status would impair the lawyer's judgment for the agency; in that case the lawyer may proceed with the agency's informed written consent.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquirer is a State-employed lawyer who at times represents a State agency in disciplinary proceedings against union-represented employees. The lawyer was once a member of the union but resigned and is now an agency-shop member: required to pay dues but excluded from membership benefits and from voting in union elections. The question is whether agency-shop status creates a conflict and, if so, whether it can be waived.

The committee analyzes the question under Rule 1.7(a)(2), which bars a representation where a reasonable lawyer (defined in Rule 1.0(q) as one personally disinterested in the representation) would conclude there is a significant risk that the lawyer's professional judgment for the client will be adversely affected by the lawyer's own financial, business, property, or other personal interests. Drawing on N.Y. State 578 (1986), the committee distinguishes a full union member, who has a conflict in representing the employer against a fellow member under the same collective bargaining agreement, from an agency-shop member, for whom "these concerns are not present to the same degree." It reinforces the point with recent personal-interest opinions treating remote or theoretical risks as insufficient (N.Y. State 1119 on a former associate DA; N.Y. State 1122 on a foster-parent attorney for children; N.Y. State 968 on a furloughed government lawyer).

The committee directs the lawyer to make the assessment each time, asking whether a reasonable lawyer would find a significant risk from the former union membership or current agency-shop status. On the facts presented, it concludes no such significant risk exists. If in a particular matter the lawyer does perceive a significant risk, Rule 1.7(b) supplies the cure: the lawyer may proceed if the lawyer reasonably believes the lawyer can provide competent and diligent representation and the agency gives informed consent confirmed in writing. The committee notes that while N.Y. State 578 (following pre-Code N.Y. State 40) once held a government could not consent to a conflict, it abandoned that position in N.Y. State 629 (1992) and has since consistently recognized that a government client may give informed consent.

In practice

Under this opinion, agency-shop membership alone does not disqualify a government lawyer from prosecuting discipline cases against union-represented employees; the committee treats agency-shop status as materially different from full union membership for conflict purposes. The lawyer must evaluate each matter under Rule 1.7(a)(2) for a significant risk to the lawyer's independent judgment, and on the facts here the committee found none. Where a lawyer does find a significant risk in a particular case, the committee holds the conflict is consentable: the lawyer may act if the lawyer reasonably believes the representation can be competent and diligent and the agency gives informed consent confirmed in writing.

Common questions

Q: Does paying union dues as an agency-shop member disqualify a government lawyer from cases against union members?

A: Generally no. The committee treats agency-shop status as different from full union membership and found no significant Rule 1.7(a)(2) risk on the facts, though the lawyer must assess each matter (Opinion 1149 ¶¶ 4-6).

Q: What if the lawyer does perceive a conflict in a particular discipline case?

A: The lawyer may still proceed if the lawyer reasonably believes the representation can be competent and diligent and the agency gives informed consent confirmed in writing under Rule 1.7(b) (¶ 7).

Q: Can a government agency consent to a conflict of its own lawyer?

A: Yes. The committee abandoned its older contrary view in N.Y. State 629 (1992) and consistently recognizes that a government client may give informed consent (¶ 8).

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7) on concurrent conflicts, focusing on the Rule 1.7(a)(2) personal-interest test and the Rule 1.0(q) "reasonable lawyer" standard, and the Rule 1.7(b) consent conditions, including that a government client may give informed consent confirmed in writing. It builds on the line distinguishing full union membership from agency-shop status in N.Y. State 578 (1986).

Citations and references

Rules of Professional Conduct:

  • New York Rule 1.7(a)(2) (Model Rule 1.7): personal-interest conflicts; significant risk
  • New York Rule 1.7(b) (Model Rule 1.7): consent, including by a government client
  • New York Rule 1.0(q): definition of "reasonable lawyer"

Other opinions cited:

  • N.Y. State 578 (1986): union member vs. agency-shop member in employer discipline cases
  • N.Y. State 1119 (2017): former associate DA defending against the former office
  • N.Y. State 1122 (2017): foster-parent attorney for children; remote risk insufficient
  • N.Y. State 968 (2013): furloughed government lawyer's personal-interest conflict
  • N.Y. State 629 (1992): a government client may give informed consent to a conflict

See also

Source