Volume 35

Ethical Considerations for Lawyers Engaging in Union-Avoidance Persuasion, Including the Impact of the “Persuader” Rule

by Daphne Assimakopoulos

Law firms and attorneys are intimately tied up in labor-management tensions. Employers and unions alike turn to lawyers to protect themselves from legal liability and vindicate their rights. Amidst a broader public debate around unions and corporate power, it is imperative to examine what lawyers engaging in union avoidance consultations owe to society from an ethical perspective, both broadly and under the Model Rules of Professional Conduct.

Union density in the United States is low. From 2018 to 2019, union membership dropped by 170,000, reducing the unionized share of the workforce to 10.3%, the lowest portion on record since 1983.
At the same time, the popularity of unions is increasing, particularly among young people. A 2020 Gallup poll found that 71% of people ages 18–34 support unions. Almost half of nonunion workers polled in 2017 (48%) said they would join a union in their workplace tomorrow if they had the chance. This figure is 50% higher than in 1995, when 32% of those surveyed said they would vote for a union.

Labor-management tensions are front page news, with large organizing campaigns continuing within major businesses like Amazon and Starbucks. Amazon in particular has been subject to public scrutiny due to the tactics deployed against unionization at its Bessemer, Alabama, fulfillment center. The Department of Labor (“DOL”) estimates that between 71% and 87% of employers hire professional union-avoidance consultants to run campaigns to hinder workers’ organizing efforts. The Economic Policy Institute estimates that employers are now spending nearly $340 million per year on such consultants.

This Note will provide a detailed roadmap after sketching a brief background on current labor law and the field of union avoidance consulting.


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