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September 27, 1966

Joseph Tucker et al., Plaintiffs,
Vincent D. Shaw et al., Defendants

Rosling, D.J.

The opinion of the court was delivered by: ROSLING


Plaintiffs, members of Local 70 Bartenders Union of Brooklyn and Queens have brought action as authorized by the Labor-Management Reporting and Disclosure Act of 1959, LMRDA, 29 U.S.C. § 501(a) *fn1" against "six officers" *fn2" thereof for alleged unlawful diversion of the funds and property of the local. District court jurisdiction of the suit is found in subdivision (b) *fn3" of the provision cited. The complaint alleges the prerequisite refusal or failure to sue by the local or its officers and the granting of leave by this court to plaintiffs to bring this "proceeding" which is declared in the statute and so described in the pleading as being "for the benefit of the labor organization."

 Plaintiffs move for an order pursuant to Fed. R. Civ. P. 65(a) and said § 501(b) for a temporary injunction restraining the local from "defending or otherwise representing the defendants in this action * * * (and) from expending any of its funds for counsel fees or other expenses or disbursements to defend or otherwise represent defendants herein". The local is not a party to this proceeding except in the tangential sense that the action by statutory prescription is brought for its benefit.

 Additionally, the movants apply for a direction in the order "disqualifying Harold L. Luxemburg as counsel for defendants herein, and enjoining (him) from appearing for, defending, or otherwise representing defendants in this action".

 It is undisputed that Mr. Luxemburg has been general counsel for the union, retained as such for the past sixteen years, and a strong likelihood exists, which one may deduce from the nature of the serious accusations made by plaintiffs against the defendants, that his representation of the union during this long period must have brought his steps near the areas, if any there be, where bodies lie buried.

 Mr. Luxemburg argues that "the union does not seek to defend this action, nor is it a party to this action other than by virtue of the plaintiffs having obtained permission to act on its behalf." Announcing that "I am not being paid by the union to defend this case, nor have I, nor will I, seek such payment," he stipulates that " (any) fee for defending this action will have to come from the defendants individually."

 All this, however, emphasizes the adventitious and accidental, and blinks at the substance of the matter. As general counsel he has long represented the interests of the union in gross and derivatively, the interest of the members severally. The accusation directed against the officials is such as to establish them until the issues are adjudicated as potentially hostile to the interests of the union. If the accusation fails of proof, they may well have been put upon by a dissident minority motivated perhaps by no more than a rancorous envy or a selfish hope through favor gained with the rank-and-file to supplant the administration, come next election. *fn4" On the other hand, if the plaintiffs were to prevail at least as to some significant fraction of their claims of § 501(a) wrongdoing - and the charges they advance are not so frivolous on their face that that event may be discounted as altogether unlikely *fn5" - Mr. Luxemburg will, if permitted to continue as counsel, be exercising his not inconsiderable skills in behalf of those whose activities his statutorily coerced loyalty would require him to reprehend and assail, or at the very least would admonish neutrality. It could indeed be, if the case as it unfolded were close and otherwise might go either way, that these very skills, coupled with access to records and a special familiarity with their content gleaned from years of representation of the Union, might provide a makeweight sufficient to turn defeat for the defendants into a victory that other counsel would not achieve. The plaintiffs, suing in right of their Union, are entitled not to be thus overmatched, nor is it a sufficient answer to assert that the Union is technically not a party to the suit nor likely to be. For its constructive presence is coextensive with its interest, and interested in the outcome it surely is. *fn6"

 In Holdeman, supra, the affirmance of disqualification was broadly based on the fact that defendant union officials were "using counsel employed by the Union under an annual retainer to defend them". That observation, so close in its literal application to what is here under consideration, may not be denied its full force by citing, as Mr. Luxemburg undertakes to do, other cases which in factual and procedural setting are somewhat disparate from the probative environment in the instant suit. *fn7" The basic element of an attorney's commitment to serve but a single master concretized in the express phrasing of § 501(b) may not be diluted or negated by niggling distinctions.

 The motion to disqualify is, accordingly, granted. Injunctive relief, however, being mooted thereby is denied. The order which, if counsel cannot agree upon it as to form, is to be settled on notice, shall contain an implementing provision affording a reasonable opportunity for substitution of new defense counsel.

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