Board of Ed. of City of New York v. Nyquist

• Decision Date: 09 January 1979
• Docket Number: No. 30,D,30
• Citation: 590 F.2d 1241
• Parties: BOARD OF EDUCATION OF the CITY OF NEW YORK and Irving Anker, Chancellor of City School District, Plaintiffs, v. Ewald NYQUIST, Commissioner of Education of the State of New York, New York State Division of Human Rights, Defendants, Claire Cohen, Cynthia Crawford, and Joyce Silversmith, on behalf of themselves and on behalf of all female Health and Physical Education Teachers in the New York City School System, Defendants-Appellees, Melvin Berman, Noah Gelfond and Daniel Gavrin, on behalf of themselves and on behalf of all male Health and Physical Education Teachers in the New York City School System, Defendants-Appellants. ocket 78-6055.
• Court: U.S. Court of Appeals — Second Circuit

Page 1241

590 F.2d 1241

BOARD OF EDUCATION OF the CITY OF NEW YORK and Irving Anker Chancellor of City School District, Plaintiffs, v. Ewald NYQUIST, Commissioner of Education of the State of New York, New York State Division of Human Rights, Defendants Claire Cohen, Cynthia Crawford, and Joyce Silversmith, on behalf of themselves and on behalf of all female Health and Physical Education Teachers in the New York City School System, Defendants-Appellees Melvin Berman, Noah Gelfond and Daniel Gavrin, on behalf of themselves and on behalf of all male Health and Physical Education Teachers in the New York City School System Defendants-Appellants.

No. 30, Docket 78-6055.

United States Court of Appeals, Second Circuit.

Argued Sept. 14, 1978.

Decided Jan. 9, 1979.

Thomas C. Greble, Glen Cove, N. Y. (James R. Sandner, New York City, of counsel), for defendants-appellants.

Kenneth E. Gordon, New York City (Gordon & Schechtman, Murray A. Gordon, New York City, of counsel), for defendants-appellees.

Before FEINBERG, MANSFIELD and SMITH, Circuit Judges.

FEINBERG, Circuit Judge:

This unusual case presents difficult questions regarding the appropriate role of federal courts when called upon by disqualification motions to evaluate the conduct of attorneys who appear before them. Three male Health and Physical Education teachers (HPETs) in the New York City school system appeal from an order of the United States District Court for the Southern District of New York, Morris E. Lasker, J., disqualifying their counsel upon the motion of three female HPETs. Appellant male teachers claim that the order was an abuse of discretion because it disregarded their constitutional rights, and was without any sound basis. For reasons set forth below, we hold that the motion to disqualify should have been denied, and we therefore reverse the order of the district court.

I

The contending parties on appeal the male and female HPETs are all defendants in this declaratory judgment action brought by the Board of Education of the City of New York and the Chancellor of the City School District. In February 1977, these plaintiffs found themselves in the middle of apparently contradictory positions held by the Commissioner of Education of the State of New York ¹ and the office of Civil Rights of the Department of Health, Education and Welfare (HEW). In a case involving one of these appellants, the State Commissioner had ruled that the use of separate seniority lists for male and female HPETs for the purpose of layoffs was illegal. ² Shortly thereafter, HEW initially indicated to the Board that HEW took exactly the contrary view, that merger of the lists would violate Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. Caught in this apparent dilemma, plaintiffs provisionally merged the seniority lists of male and female HPETs and commenced this action for a declaratory judgment in which all concerned parties would be present. The complaint named as defendants HEW and its Secretary, ³ the New York State Commissioner of Education, the State Division of Human Rights, three named male HPETs, individually and as representatives of all male HPETs, and three named female HPETs, individually and as representatives of all female HPETs. The male and female defendants have asserted counterclaims and cross-claims. The relief sought by plaintiffs is a judgment declaring that the provisional policy of merging the seniority lists, effective February 1, 1977 but not retroactively, is lawful.

The two classes of defendants are the actual contending parties in this litigation. The male HPETs allege that maintaining separate seniority lists for male and female HPETs is illegal and that:

all defendant male Health and Physical Education teachers who were laid off on or after September 1, 1975, are entitled to reinstatement with back pay and all other retroactive benefits incident to their positions to the date of their layoff if less senior female teachers were retained at that time or at any time thereafter.

The female HPETs allege that their seniority status perpetuates past discriminatory practices of plaintiffs and that if the provisional merged seniority list is used for layoff purposes "it will result in the layoff of at least six times as many female HPETs as male HPETs." The stakes in the lawsuit are obviously high.

The male HPETs are represented in this action by James R. Sandner, Esq., who is also General Counsel of New York State United Teachers (NYSUT). That organization is an unincorporated membership association of approximately 180,000 teachers, librarians, guidance counsellors and other school related employees of the almost 800 school districts in New York State. ⁴ We are told that in each of the school districts there is a separate local union, which is the exclusive bargaining representative for employees in that unit. The majority of these individual unions have chosen to affiliate themselves with NYSUT, but the latter does not collectively bargain for any public employees. It does, however, provide a number of services to its members, including a legal service program under the direction and control of Mr. Sandner. Both the male and female HPETs are represented in collective bargaining by the American Federation of Teachers (AFT), to whom they pay dues. A portion of the dues paid to the AFT is remitted to NYSUT, which, at least in part, apparently finances the legal service program.

Under the program, NYSUT's members may apply to obtain legal representation free of charge. Mr. Sandner and his staff may take an applicant's case when, in their judgment, the claim is both job-related and meritorious. It is through this procedure that the male defendants retained Mr. Sandner as their attorney. NYSUT itself, however, has taken no position on the merits or on any other issue in this litigation.

The female HPETs moved to disqualify Mr. Sandner as counsel for the male HPETs or, in the alternative, to require NYSUT to furnish counsel for the female teachers. Judge Lasker concluded that "the female teachers are paying, in part, for their opponents' legal expenses." This violated "at least the spirit, if not the letter, of Canon 9 of the Code of Professional Responsibility that 'A lawyer should avoid even the appearance of impropriety.' " Accordingly, the judge granted the motion and this appeal by the male HPETs followed.

II

Appellants' briefs discuss at length various Supreme Court cases dealing with the rights of associational free speech, group-sponsored legal action and First Amendment considerations, e. g., United Transportation Union v. Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). These issues are not substantially implicated on this appeal.

Button established as part of the First Amendment freedoms of association and political expression the right of a group to litigate controversial points of view in court free of governmental action purporting to regulate the practice of law. Here, however, NYSUT has made no effort to appear in the litigation either as a party or as an amicus. And indeed, appellants repeatedly insist that NYSUT has taken no position on any issue in this litigation. Since there has been no activity by the group, the Button principle is not applicable here.

Transportation Union, Mine Workers and Trainmen hold that a state may not, in the guise of regulating the practice of law, consistent with the First Amendment prevent efforts of a union to provide its members practical and economical access to courts to press work-related personal injury claims. Those cases establish the right to engage in "collective activity undertaken to obtain meaningful access to the courts," Transportation Union, supra, 401 U.S. at 585, 91 S.Ct. at 1082, where the members of the group are at least substantially united in interest. None of the claims asserted with the aid of those legal plans would, if successful, have disadvantaged any union member. In contrast, this case presents a seniority dispute where the real adversaries are union members. It is thus difficult to characterize Mr. Sandner's representation of the men as "collective activity" of the group within the meaning of those cases. ⁵ It is true that also underlying those cases "was the Court's concern that the aggrieved receive information regarding their legal rights and the means of effectuating them." See Bates v. State Bar of Arizona, 433 U.S. 350, 376 n. 32, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). But here there is no claim that the male defendants were unaware of their legal rights.

Also not controlling, though not necessarily irrelevant, are the fair representation cases, e. g., Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), discussed by appellants. Those cases hold that, in the context of a union's duty fairly to represent the bargaining unit, a union may, if in good faith, assert a position that benefits some of its members to the detriment of others. Since NYSUT has taken no position on the merits, it is far from clear that the union's right to take a position, established by those cases, is implicated here.

Appellants suggest that the recent Supreme Court decision in In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978) supports the view that an individual attorney like Mr. Sandner has a First Amendment right to make his views known in the courts even though his conduct in that direction might otherwise breach ethical canons. In Primus, a lawyer, who was also an officer of the Columbia, South Carolina branch of the American Civil...