Defending Public Interest Lawyers Right to Represent a Class Against Courts Ideological Litmus Test


Together with the Center for Constitutional Jurisprudence of the Chapman University School of Law Atlantic Legal Foundation filed an amicus brief in the U.S. Supreme Court on behalf of the Center for Constitutional Jurisprudence, the Mackinac Center for Public Policy and itself in support of the petition for certiorari in Scheffer v. Civil Service Employees Association, Local 828.

The underlying case is a lawsuit challenging several labor law violations by the Civil Service Employees Union in Monroe County, New York regarding use of non-member agency fees for political purposes by municipal employees. The petition for certiorari seeks review of an order of the lower courts forbidding National Right to Work Legal Defense Foundation (NRWLDF) lawyers from serving as class counsel for the plaintiff class. The trial court held that the NRWLDF attorneys had a ideological conflict because the foundation is opposed to unionization. The trial court found that there was a conflict between the interests of the class members (consisting of non-union employees who were improperly forced to pay ‘agency’ fees to a union that failed to give them the necessary disclosures as to what portion of the agency fee was used for non-collective bargaining activities) and the NRWLDF. In essence, the trial court judge assumed (without any evidence in the record) that: (a) despite their decision not to join the union, the non-member employees nevertheless had a personal interest in ensuring that the union be as strong as possible, given that the union serves as their exclusive bargaining agent; and (b) the NRWLDF has as its general goal weakening all labor unions, including the defendant in this case, and that goal may be imputed to the two NRWLDF lawyers who sought to serve as class counsel.

We urged the Court to grant the petition because this case raises a critical issue for attorneys employed by or affiliated with a public interest or legal services organization. In our brief we argued that the lower courts erred in assuming that merely because an attorney is associated with a public interest organization, the attorney would violate the rules of professional conduct to further the organizations supposed ideological position. We pointed out that New York Rule of Professional Conduct 1.8(f) prohibits attorneys from accepting compensation from a third party for representing a client unless there is no interference with the lawyers independent professional judgment or with the client-lawyer relationship. New York Rule of Professional Conduct 1.7 prohibits representation of a client in situations where it would result in the representation of differing interests. Using its unfounded assumption about the lawyers obligations, the district court proceeded to analyze the political viewpoint of the public interest organization to decide whether, in the courts opinion, that viewpoint would coincide with the views of the members of the class and whether that viewpoint would be beneficial to the members of the class. The court thus used Federal Rules of Civil Procedure Rule 23, which governs class actions, to impose its own notion about what viewpoints are orthodox, an issue the court would not have reached and should not have reached — without the unwarranted assumption that attorneys affiliated with public interest organizations will violate the rules of professional conduct.

The question in this case that affects public interest law firms generally is whether it is appropriate for courts to make speculative assumptions about the existence of possible conflicts between public interest lawyers and their clients, and then make important procedural rulings (in this case the choice of class counsel) on the basis of those assumptions. The district court’s actions in this case, which were summarily affirmed by the Second Circuit despite the existence of a clear circuit split, has serious First Amendment implications that extend well beyond the specifics of class-action representation. It opens the door for judicial hostility towards particular policy positions or even specific organizations that can translate into unfavorable decisions that substantially prejudice not just the lawyers involved, but their clients as well.

To view our brief, please click here.