2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

P. Immunity From LiabilityIn a case involving a question of first impression, the Third Circuit Court of Appeals inCarino v. Stefan, 376 F.3d 156 (3d Cir. 2004), considered the issue of whether an attorney hiredby a labor union to represent a union member at an arbitration hearing as part of a collectivebargaining agreement is immune from liability to the member for legal malpractice.In Carino, an attorney, Stefan, was hired by the United Food and Commercial WorkersInternational Union (“Union”) to represent Plaintiff, Ms. Carino, in an employment disputeagainst Prudential Insurance Company of America (“Prudential”). Union had entered into acollective bargaining agreement with Prudential. The Union was dissatisfied by the initialgrievance procedure and exercised its right to have the matter arbitrated.Shortly before the arbitration was to commence, Stefan contacted Ms. Carino to discussthe matter. Stefan asked Carino what she hoped to gain from the arbitration, to which she repliedwith several conditions, including having her employment record cleared, having a federalinvestigation closed, and having her pension reinstituted. Stefan stated that he would be able tosatisfy her wishes in return for her withdrawal of her grievance against Prudential. Ms. Carinoreleased Prudential, but none of her concessions were ever granted.The trial court dismissed Carino’s claim under Federal Rule of Civil Procedure 12(b)(6)for failure to state a claim upon which relief could be granted. The Third Circuit agreed, statingthat the Labor Management Relations Act barred the suit. The court relied on the SupremeCourt’s interpretation of Section 301(b) of the LMRA, 29 U.S.C. § 185(b), and Atkinson v.Sinclair Refining Co., 370 U.S. 238 (1962) and its progeny, to conclude that “§ 301 of theLMRA immunizes attorneys employed by or hired by unions to perform services related to acollective bargaining agreement from suit for malpractice.” Carino, 376 F.3d at 162.In Cole v. Beros, No. 2:08-cv-541, 2008 U.S. Dist. LEXIS 42780 (W.D. Pa. May 29,2008), the district court held that the LMRA “[i]mmunizes an attorney hired by the union againstlegal malpractice claims from union members.” By way of background, Plaintiff was suddenlyhospitalized and required surgery, causing her to remain out of work for three weeks. Plaintiffalleged that she called Defendants, the union president and also a union attorney, Steve Jordan,and was instructed to request medical leave. Mr. Jordan subsequently assisted Plaintiff inrequesting medical leave, but her leave was ultimately denied. Plaintiff alleged that Mr. Jordan’snegligence in assisting with her medical leave resulted in denial of benefits under the FederalFamily and Medical Leave Act. In holding that Mr. Jordan was immune to such suit, the courtexplained that Mr. Jordan was acting in his role as union attorney when he allegedly assisted inconnection with her labor grievance proceeding.The Supreme Court of Pennsylvania held that the judicial privilege does not absolutelyimmunize an attorney from liability for legal malpractice for publishing to a reporter a complaintthat had already been filed. Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004). The judicial privilegegrants absolute immunity to persons for “communications which are issued in the regular courseof judicial proceedings and which are pertinent and material to the redress or relief sought.” Id.at 71 (quoting Post v. Mendel, 507 A.2d 351, 355 (Pa. 1986)). Because the attorney publishedthe complaint to a reporter outside the context of judicial proceedings and publishing it was not171