While the answer to this question may depend on the jurisdiction where the lawyer is practising, the law in Quebec is now clear.
Recently, the Tribunal administratif du travail (the Tribunal) sitting in review provided a clear answer to this question in Syndicat professionnel des ingĂ©nieurs d’Hydro-QuĂ©bec inc. et Paquette, 2017 QCTAT 855.
In this case, a worker who was unhappy that his grievance was rejected by an arbitrator filed a complaint against his union for violating its duty of fair representation. The same law firm that had argued the grievance (but not the same lawyer) appeared to defend the union. The worker asked the Tribunal to bar the firm from the case.
The first administrative judge who was seized of the motion allowed it. In her opinion, according to the new Code of Professional Conduct for lawyers, any worker who files a grievance is a “client” of the lawyer who has been commissioned by the union to argue the grievance. The judge wrote that the lawyer has a “two-headed client.” Accordingly, she decided that this lawyer’s firm had a conflict of interest and therefore could not represent the union in defence against the worker’s accusation.
This decision had serious consequences. If the worker is the lawyer’s client, he can give him instructions and fire him. Similarly, the lawyer must inform the client of all information learned in the course of the case and communicate any settlement offers made by the employer. The lawyer would also have a duty of professional secrecy in respect of anything told to him in confidence by the worker. Under these circumstances, it is clear that the lawyer would often be faced with conflicts of interest between a worker and a union. There would be situations where management would no longer be in a position to negotiate the settlement of a grievance with the union without the worker’s consent, since the union’s lawyer would have obligations towards the worker.
The union applied for review of the judge’s decision.
Administrative Judge Turcotte reversed the first decision. He based his decision on prior jurisprudence by the Superior Court, the Commission d’accès Ă l’information, the Disciplinary Board of the Barreau du QuĂ©bec, and the particular labour relations system. In our system, the union has a monopoly on representation and is free to decide whether or not it will assign a lawyer, and to choose such lawyer. The lawyer only has one client: the union. Only the union can give him instructions, and the lawyer only has obligations towards the union. Any private statements the plaintiff shares with the lawyer can be shared with the union, since the union is the lawyer’s client. The judge wrote, [translation] “There can be no conflict of interest, because the grievor is not their client. In this instance, their professional obligations are only owed to the [union]. Indeed, they must consider the best interests of their client in their analysis of the file.”
Of course, there could be cases where an employee would be able to choose his own lawyer, but this would only occur in situations where the employee and the union have opposite and distinct interests; a mere difference of opinion with respect to defence strategies does not suffice.
Stéphane Lacoste is General Counsel for Teamsters Canada