The action which gives rise to these consolidated interlocutory appeals
Our previous opinions delineate the legal principles which govern this issue. However, in view of the different context
Yablonski and other UMWA members brought suit under Section 501(b) of the Labor-Management Reporting and Disclosure Act of 1959
After remand to the District Court, the UMWA's general counsel and his staff entered their appearance on behalf of the UMWA. Plaintiffs' motion to disqualify these attorneys as well was denied by the District Court. We held that the UMWA's general counsel and his associates were similarly precluded from representing the UMWA because of their close association with and representation of individual defendants in other litigation.
Yablonski was murdered in December 1969. Of the plaintiffs, only Yablonski had requested the UMWA to sue the officers before he instituted the derivative suit as required by Section 501(b).
Subsequent to the filing of UMWA's brief on appeal, new UMWA elections were held
At a status call, the District Court was informed of UMWA's wish to realign as party-plaintiff in the action and to be represented by its general counsel. Independent counsel contended that representation of UMWA by the general counsel's staff would entail the same difficulty presented in the earlier appeals because of their earlier appearance on behalf of Trbovich and Patrick. The District Court concluded that since an interlocutory appeal brought by the UMWA was pending, motions for leave to realign the UMWA as plaintiff and for leave of Yablonski's staff to appear on the UMWA's behalf should be directed to this court.
In response to the District Court's ruling, the present motions were filed. The UMWA seeks (1) leave to withdraw the appeal it brought; (2) to intervene as appellee in the appeal brought by the officer-defendants; (3) leave for its new general counsel and staff to appear on its behalf; and (4) to dismiss the appeal brought by the officer-defendants as moot in view of the UMWA's presence as plaintiff-appellee.
We consider first the UMWA's motion for leave of its general and associate counsel to represent the UMWA in this litigation. The officer-appellants contend that only objective counsel — counsel without bias toward either the plaintiffs or the defendant officers — can satisfy the standards established by our earlier decisions in this case.
It is essential to emphasize, however, as we did in our first opinion, that "separate counsel is required only in a situation where there is a potential conflict between the interests of the union and those of its officers."
Counsel's former clients, Trbovich and Patrick, together with other UMWA members, initiated this litigation as a derivative action for the benefit of the UMWA, not for the benefit of themselves individually. The UMWA possesses exclusively the financial interest at stake because any recovery in the action belongs to it. Thus, although under its former leadership the UMWA was aligned as a defendant in the controversy, the litigation since its commencement has in reality been its own.
The UMWA now seeks to reverse its stance and to align itself as plaintiff-appellee. We see no reason whatever to doubt that in view of the change occasioned by the recent UMWA elections, the UMWA's position will in fact remain consistent with that which the original plaintiff-appellees have assumed from the beginning.
Furthermore, unlike the officer clients of the counsel we earlier disqualified, Trbovich and Patrick have never been accused of misconduct in union matters. Consequently, the risk of conflict which existed in the earlier cases — where counsel may have been duty bound to shield the officers to the detriment of the UMWA whose interests they were also obligated to protect — simply does not exist in the circumstances presented here.
Because we find no potential conflict of interest in the representation of the UMWA by its present general counsel in this litigation,
The District Court declined to rule on the UMWA's motion to realign from party-defendant to party-plaintiff because these appeals were pending. The UMWA now moves this court for leave to withdraw its own appeal, to intervene in the appeal brought by the individual
At the commencement of this litigation, the UMWA, under the former regime, chose to assume a defensive role. Since that time, by virtue of the elections held earlier this year, the leadership of the UMWA has changed and the newly elected officers now wish the UMWA to assume prosecution of the cause.
Clearly, the UMWA, like any labor organization, "has an interest in formulating its own policies, making its own decisions, and conducting its own affairs."
Although this decision is clearly within the newly-elected officers' authority,
Absent the potential for a conflict of interest or a showing of bad faith in the Union's effort to withdraw its appeal and to realign as party-plaintiff,
Id. at 256, 448 F.2d at 1179 (footnote omitted).
This same kind of conflict concerned the court in Milone v. English, 113 U.S.App.D.C. 207, 306 F.2d 814 (1962), where the court said:
Id. at 210, 306 F.2d at 817; accord Murphy v. Washington American League Base Ball Club, Inc., 116 U.S.App.D.C. 362, 324 F.2d 394 (1963) (shareholder's derivative suit); International Bhd. of Teamsters v. Hoffa, 242 F.Supp. 246 (D.D.C.1965); Lewis v. Shaffer Stores Co., 218 F.Supp. 238 (S.D. N.Y.1963) (shareholder's derivative suit).
145 U.S.App.D.C. at 256-257 n. 8, 448 F.2d at 1179-1180 n. 8.
ABA Code of Professional Responsibility and Canons of Judicial Ethics, EC 5-14 (1971) (footnotes omitted).
Clearly, the converse is true that
Annot., 52 A.L.R.2d 1243, 1246 (1954).
147 U.S.App.D.C. at 197, 454 F.2d at 1040, quoting Yablonski v. UMW, 145 U.S.App.D. C. 252, 257, 448 F.2d 1175, 1180 (1971). See also Annot., supra note 18.
It should be noted that we foresaw the possibility in the second appeal in this case that the UMWA would want to take an active role in this action. 147 U.S.App.D.C. at 198, 454 F.2d at 1041.