Las Vegas POA

Terminated Officer’s Lawsuit Against Union Lawyer Fails

Written on 01/06/2021
Will Aitchison

The Illinois Supreme Court has rejected a lawsuit filed by a terminated officer against his union’s lawyer. The Court’s opinion turned on several fundamental principles of legal ethics.

The officer, Russell Zander of the Village of Fox Lake, was terminated for various acts of on-the-job misconduct. Zander’s labor organization, the Fraternal Order of Police, assigned Roy Carlson, one of its staff attorneys, to represent Zander.

Under Illinois law, a terminated officer can choose between binding arbitration and a hearing before the local board of fire and police commissioners. On Carlson’s advice, Zander elected to proceed via arbitration. After a two-day hearing, the Arbitrator upheld the decision to terminate Zander’s employment and refused to reinstate him. Unhappy with this outcome, Zander sued Carlson and the FOP for damages.

The Court began by referencing Section 301(b) of the federal Labor Management Relations Act, which provides that judgments against a labor organization “shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.” The Court noted that a long line of cases had “consistently interpreted this statute to mean that individual union members, agents, and representatives are not subject to civil liability for action they undertake on behalf of the union.”

The Court acknowledged that “federal labor law is not directly controlling here. The Village of Fox Lake is a political subdivision of the State of Illinois. The federal Labor Management Relations Act does not apply to claims by public employees against such entities. We have recognized, however, that because of close similarities between the Illinois public employee bargaining statute and federal labor law, federal decisions interpreting the National Labor Relations Act provide useful guidance.

“In Zander’s view, claims based on legal malpractice present a special case. He contends that this Court’s Rules of Professional Conduct create a higher standard of care and that the state’s interest in protecting the public from legal malpractice should transcend federal labor law.

“However, immunizing union lawyers from personal liability for actions taken on behalf of the unions that employ them does not relieve those lawyers of their professional obligations pursuant to this Court’s Rules of Professional Conduct. If a union lawyer violates the Rules of Professional Conduct, he or she remains subject to disciplinary action. The conflict Zander seeks to create is therefore a false one.

“The next hurdle Zander faces is that Carlson did not actually have an attorney-client relationship with Zander. Carlson was employed by the FOP and appeared in the proceedings as a representative of the Union to protect Zander’s rights under the collective bargaining agreement it had negotiated on behalf of all the members of the bargaining unit. Carlson met frequently with the FOP regarding the Zander matter, Carlson and the Union shared information and had business discussions about the case, Carlson operated under the FOP’s control, and Zander had no input into the Union’s decision to appoint Carlson to his case.

“The principle that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to union members pursuing grievances where, as in this case, the services performed by the attorneys were part of the collective bargaining process has been consistently followed by federal courts for more than three decades. Courts applying state public sector labor laws have reached the same conclusion. Zander has cited no relevant authority that might warrant a contrary position.

“As have other courts when interpreting their state public labor relations statutes, and as the circuit and appellate courts did here, we believe that line of authority should guide our interpretation of the Illinois Public Labor Relations Act. Consistent with that authority, we conclude that Carlson was immune from individual liability for any actions he took or failed to take in connection with assisting Zander on behalf of the union pursuant to the collective bargaining agreement following Zander’s termination by the Village. We therefore agree with the appellate court that Zander’s malpractice claim against Carlson was properly dismissed.

“Zander cannot avoid this conclusion based on his alternative theory that he was a third-party beneficiary of the relationship between Carlson and the FOP. As the appellate court correctly recognized, applying third-party beneficiary principles to override the immunity that would otherwise protect a union attorney would shift liability for a union’s representation of its members from the union itself to the union’s agent, the very thing the law says must not be done.”

Zander v. Carlson, 2020 IL 125691 (Ill. 2020).

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