Las Vegas POA

Union Lawyer Not Liable To Member For Malpractice Claim

Written on 04/02/2020
Will Aitchison

Russell Zander was a police officer with the Village of Fox Lake, Illinois. When the Village’s police chief filed formal charges recommending Zander’s termination, Zander’s labor organization, the FOP, assigned Roy Carlson to represent him. Carlson is a licensed attorney and FOP employee who represents members in grievance and termination proceedings.

Zander did not pay Carlson, other than indirectly through his union dues, and the two did not sign a retainer agreement. According to Zander, the FOP forced him to accept Carlson’s representation and gave him no input in the selection.

Under Illinois law, a police officer facing discharge is entitled to a hearing before the local Board of Fire and Police Commissioners unless a collective bargaining agreement between the municipality and the officer’s union provides for arbitration of such disputes. The collective bargaining agreement between the Village and the FOP provides that an officer may elect to challenge his discharge either before the Board or through the agreement’s ordinary grievance and arbitration procedure.

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.

Zander then sued Carlson and the FOP, alleging that Carlson owed Zander a duty of care arising from their attorney-client relationship and that Carlson breached that duty by negligently advising Zander to waive his right to a hearing before the Board and by inadequately representing him at the arbitration hearing. Zander also alleged that the FOP assumed its own duty of care to Zander by providing him with legal representation and that it breached that duty by assigning him an inexperienced and incompetent lawyer.

The Illinois Court of Appeals dismissed Zander’s lawsuit. The Court relied heavily on the Supreme Court’s decision in Atkinson v. Sinclair Refining Co., where the Supreme Court held that under the federal Taft-Hartley Act, a union’s agents may not be held individually liable for actions taken on the union’s behalf in the collective bargaining process. The rule in Atkinson rests on the “view that only the union should be made to respond for union wrongs, and this policy cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, for violation of a collective bargaining contract for which the union itself is liable.”

The Court found that “the structure of the Illinois Labor Relations Act supports the application of Atkinson immunity to agents and officers of public sector unions. Under the Labor Relations Act, a union owes its members a ‘duty of fair representation’ arising from the union’s statutory role as exclusive bargaining agent for its members. The Labor Relations Act vests the Illinois Labor Board with exclusive jurisdiction over claims that a union has violated its duty of fair representation. And it requires a union member to establish intentional misconduct by the union to prevail on such a claim.

“Zander argues that such immunity should not extend to a union’s lawyers. We disagree. Sound policy reasons support the extension of Atkinson immunity to attorneys who act on behalf of a union in matters arising under a collective bargaining agreement or that otherwise relate to the collective bargaining process.

“As we noted above, a union may be held liable to a member for breaching its duty of fair representation only where it commits intentional misconduct in representing an employee. In a legal malpractice action, by contrast, an attorney may be held liable for merely negligent conduct. Allowing union members to file malpractice suits against union attorneys for actions taken in connection with the collective bargaining process would anomalously hold certain agents or employees of the union to a far higher standard of care than the union itself.

“Zander argues that his complaint alleged a direct attorney-client relationship between him and Carlson. While we must accept the well-pleaded allegations of Zander’s complaint as true when assessing its legal sufficiency, we are not required to accept mere conclusions of law or fact unsupported by specific factual allegations. Zander’s complaint alleged that by acquiescing in Carlson’s representation of him, he formed an attorney-client relationship with Carlson. But he conceded that he and Carlson did not sign a retainer agreement; that he had no input into the FOP’s decision to assign Carlson to represent him; and that he did not pay for Carlson’s services, other than indirectly through his union dues. We reject the contention that Zander’s mere acceptance of Carlson’s representation created an attorney-client relationship in the ordinary sense with the particular union member who is asserting the underlying grievance.”

Zander v. Carlson, 2019 IL App (1st) 181868 (Ill. App. Ct. 2019).

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