John Gaal's Ethics Corner

A: As a starting point, it is necessary to determine who your client is: the union, the grievant, or both. If you only represent the union, then you can proceed. Similarly, if (as is probably not the case) you only represent the grievant, you can proceed (making sure, of course, that you are proceeding in his or her best interests and not those of the union). However, if you represent both the grievant and the union with respect to this matter, then you have a conflict of interest that likely precludes you from continuing with the representation, unless after full disclosure both clients consent to continued representation (whether on a continuing, joint basis or on behalf of just one of them). Remember, however, that some conflicts are so direct and adverse that no amount of disclosure and consent can effectively waive them, and you might be precluded from continuing with the representation on any basis, despite the clients' desires.

The determination of whom you represent is essentially a question of fact. In the typical grievance arbitration context, the dispute is between the union and the employer, as the parties to the collective bargaining agreement. While the grievant clearly has an interest in the proceeding, and the union owes the grievant a duty of fair representation, the grievant is not formally a party to the proceeding. In those cases, the union's attorney typically represents the union and only the union. New York State Bar Association Committee on Professional Ethics, Opinion 743 (2001). As a result, the only attorney-client relationship that exists is between the attorney and the union itself.