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John Gaal's Ethics Corner
Q: In my practice, I regularly represent unions. Recently, in preparing a grievant for an arbitration, it became apparent that a conflict existed between the interests of the grievant and those of the union on a central point of the case. Can I continue with this case?
A: As a starting point, it is necessary to determine who your client is: the union, the grievant, or both. If you only represent the union, then you can proceed. Similarly, if (as is probably not the case) you only represent the grievant, you can proceed (making sure, of course, that you are proceeding in his or her best interests and not those of the union). However, if you represent both the grievant and the union with respect to this matter, then you have a conflict of interest that likely precludes you from continuing with the representation, unless after full disclosure both clients consent to continued representation (whether on a continuing, joint basis or on behalf of just one of them). Remember, however, that some conflicts are so direct and adverse that no amount of disclosure and consent can effectively waive them, and you might be precluded from continuing with the representation on any basis, despite the clients' desires.
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