Jottings By An Employer's Lawyer

Tuesday, July 20, 2004

Want A 'Get Out of Malpractice Free' Card? And Other Reasons To Love This Practice


Then be a lawyer hired by the union to represent a grievant in an arbitration proceeding, at least in the 3rd Circuit, and according to the opinion in Carino v. Stefan (3rd Cir. 7/19/04) [pdf] every other circuit which has decided the question. The specific holding, succinctly put:
This appeal presents a question of first impression for our Court, namely, whether an attorney hired by a union to perform services on behalf of a union member in connection with an arbitration hearing conducted pursuant to a collective bargaining agreement is immune from suit for malpractice by that member. We conclude that the LMRA bars such a suit.
The silver bullet is the expansive reading given ยง301(b) of the Labor Management Relations Act which restricts liability to a labor organization and not its individual members.

Here, the ruling while certainly good for counsellor Stefan, shortcut what almost certainly would have been an interesting factual discussion, or perhaps the basis for a Soprano's episode.  Among Ms. Gisela Carino's allegations were that 2 days before her arbitration, she received a call from her union provided lawyer asking to meet her at a hotel. At that meeting her counsel allegedly told her the venue had been changed to that hotel, that the company (Prudential) and the FBI were currently interviewing witnesses who would testify against her, they were prepared to take her to jail and that it would cost $100,000 to get out.
 
Asked by her counsel what she wanted out of the arbitration she replied she only "wanted her employment record cleared of Prudential's false charges; the FBI investigation closed; a promise that Prudential would not sue her for attorney's fees; and her pension reinstated." To which, her counsel supposedly replied, "No problem." After agreeing to withdraw her grievance in return for those terms, her hired defender then suggested that they repair to the bar to wait for the "arbitrating judge." After an hour of waiting (no details about the allegations of whether any alcohol was consumed) her counsellor told her they could leave and call it a mutual agreement. Then, according to her suit, "he presented her with various forms, including a two-page document entitled 'Grievance Release,' and asked her to sign them. He did not explain what the forms were or why she had to sign them. After she signed them, Stefan said he would meet with Prudential and obtain its agreement to what she wanted without any problem."

Amazingly [to no one who is with me so far], Ms. Carino later alleges she discovered that "the documents she had signed made no reference to Prudential's concessions in return for her withdrawal and release. She contacted Stefan and his firm to complain, but heard no reply. In fact, she never heard from them again."
 
How could you make this stuff up? You got to love it.  Although undoubtedly given the time and expense, Counsellor Stefan would have loved someone else to have been the target of these allegations, notwithstanding the cold water ultimately poured on them by the 3rd Circuit.


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