When a union's lawyer handles an arbitration involving a union member, does the lawyer owe confidentiality to the individual member or only to the union, and can the lawyer circulate the arbitrator's decision?

Plain-English summary

The inquiry came from a union that employs lawyers to handle arbitrations arising from employer discipline of members. The committee explained that the identity of the lawyer's client depends on the procedural posture. In some arbitrations the employee and the employer are the parties (for example, a Civil Service Law section 75 disciplinary proceeding), and the union furnishes and pays the lawyer but the employee is the client. In other arbitrations the union and the employer are the parties under a collective bargaining agreement, and the lawyer represents the union, not the member.

Where the employee is the party, the committee concluded the lawyer owes the employee a duty of confidentiality under DR 4-101. The union's payment of the fee does not change that, because DR 5-107(B) bars a third-party payer from compromising the lawyer's duty to the client; the committee analogized to the insurer-retained lawyer who owes confidentiality to the policyholder. An arbitrator's decision that contains the member's "secrets" therefore may not be distributed without the member's consent, though a copy redacted so the member cannot be identified may be circulated.

Where the union is the party, the committee concluded the lawyer must make it unambiguously clear to the member, at the outset, that the lawyer represents only the union and that information the member shares may be disclosed to the union and to other members. If the lawyer fails to dispel a member's mistaken belief that the lawyer also represents the member, the lawyer may inadvertently create a lawyer-client relationship at least for confidentiality purposes. Having given a clear explanation, and absent any contractual or legal duty of the union itself to keep the member's information confidential (a question of law the committee could not resolve), the lawyer owes the member no confidentiality duty and may distribute the arbitrator's decision at the union's direction.

Currency note

This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: If the union pays the lawyer, does that make the union the client?

A: Not necessarily. The opinion concluded that when the member is the party to the arbitration, the member is the client and DR 5-107(B) bars the paying union from compromising the lawyer's duty of confidentiality to that member.

Q: When the union is the client, what must the lawyer tell the member?

A: The lawyer must make clear at the outset that the lawyer represents only the union and that the member's disclosures may be shared with the union and other members. The opinion warned that failing to dispel a member's contrary belief can create a confidentiality relationship by accident.

Q: Can the lawyer circulate the arbitrator's decision to other members?

A: When the member is the party, only with consent or in a form redacted so the member cannot be identified. When the union is the party and the member was properly advised, the lawyer may distribute the decision at the union's direction.

Background and rules framework

The opinion interpreted DR 4-101 (confidences and secrets), DR 5-107(B) (third-party payment of a lawyer's fee), DR 5-108(A)(2) (use of a former client's confidences), and DR 5-109(A) (a lawyer for an organization) of New York's former Code of Professional Responsibility. The Model Rule analogues are Rule 1.6 (confidentiality), Rule 1.13 (organization as client), and Rule 1.8(f) (compensation from one other than the client). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality); MR 1.13 (organization as client); MR 1.8(f) (third-party payment)
• NY DR 4-101(A), (B), (C)(1); DR 5-107(B); DR 5-108(A)(2); DR 5-109(A)

Cases:

• Feliberty v. Damon, 72 N.Y.2d 112, 531 N.Y.S.2d 778 (1988), insurer-retained counsel owes duties to the policyholder

Other opinions cited:

• N.Y. State 716 (1999) and N.Y. State 721 (1999): insurer-retained counsel's confidentiality duty to the insured
• N.Y. State 718 (1999): redaction to avoid identifying a client

See also

• NY State Bar Op. 1070: Joint clients' confidentiality and file access
• NY State Bar Op. 1000: Fees paid by a third party with adverse interests
• NY State Bar Op. 1102: Insurance in-house counsel office confidentiality

Source

• Landing page: https://nysba.org/opinion-743/