Wednesday, February 7, 2007

Rubinstein on the Possibility of Lawyer Labor Unions

Posted by Alan Childress

Fitting with Jeff's post on young associates and their place as labor or proletariat in large law firms -- as well as David Luban's original marxist musings, John Steele's view here from inside the institution, and Nancy Rapoport's own considered response to the pay-gap issue -- there is an article recently posted to SSRN by Mitchell Rubinstein (who teaches workplace subjects at New York Law School and St. John's), called "Attorney Labor Unions." Its abstract:

Attorneys may be interested in joining a labor union for the same reasons as other employees. Although there is relatively little precedent or history in the area of attorney unions, the federal National Labor Relations Board has asserted jurisdiction over law firms since 1977, provided a firm has $250,000 in gross revenue. The general process of establishing a union would be the same as it is for employees in other fields.

There are instances where such unionization has occurred without contest. Many reported cases involving law firms actually concern support staff, although there are those that also involve attorneys. What if there is a contest? As a general proposition, attorneys enjoy the same legal rights as other employees in deciding whether or not they want to be represented by a union. The employer's or law firm's desires are irrelevant. However, attorney-employers are likely to raise certain points in opposition to attorney unionism. They may argue that staff attorneys are not eligible to unionize because they are either confidential employees, or supervisors, or managerial employees. They might also claim that attorneys should not organize because the ethics of the legal profession will impede the collective bargaining process. Each of these is discussed in turn.

Rubinstein is also senior counsel to the New York State United Teachers union.  Here is a version of the paper without need to download from SSRN. 

[UPDATEHere is where Paul Secunda also discusses Luban, and excerpts more from him, at Workplace Profs.  And an empirical look at associate satisfaction and partner profits, by Bill Henderson, is found here.]

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Interestingly enough, one of the cases that Rubinstein cites, and one of the few instances of union organizing by attorneys at a private law firm, involved a (now defunct) NYC union-side labor law firm, Kennedy, Schwartz and Cure.

The firm's associates sought representation, together with the support staff, by the UAW. The firm opposed the petition (and hired former NLRB Regional Director Daniel Silverman to represent them), arguing, among other things, that the rules of professional responsibility precluded the associates from being part of a unit represented by the UAW, because of potential inter-union conflicts between the UAW and the firm's clients. The Regional Director flatly rejected that argument. The firm then agreed to recognize and bargain with the union. However, shortly thereafter, the firm split up over unrelated issues.

The Regional Director's decision is available at

Posted by: The Continental Op | Feb 7, 2007 5:18:10 PM

CO, that really is interesting and I appreciate the example and cite. Sounds to me, too, that the firm split up HAD to be in part related to all this.

Posted by: Childress | Feb 7, 2007 7:56:25 PM

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