The social policy enforced by courts in NY requiring privity of contract between the client and the attorney (contrast with commercial law, strict product liability and the difference between tort and contract law) comes up in some strange ways.

Suing the lawyer provided by a union is one specialized problem. The issue is illustrated in Dowlah v Professional Staff Congress (PSC- CUNY), 2023 NY Slip Op 33616(U)
October 17, 2023, Supreme Court, New York County, Docket Number: Index No. 151561/2022, Judge: Eric Schumacher.

“Plaintiff commenced this action on February 21, 2022, alleging legal malpractice against defendants as to their representation of plaintiff in arbitration proceedings that ultimately resulted in the termination of plaintiffs employment.
The amended complaint (hereinafter complaint) alleges that PSC is the collective
bargaining representative of faculty at the City University of New York (hereinafter CUNY) and Zwiebach is PSC’s Legal Director. CUNY employed plaintiff as an associate professor at Queensborough Community College (hereinafter QCC). The complaint further alleges that, in 2014, QCC denied plaintiff’s application for promotion to a full professorship.

The complaint further alleges thatPSC filed a grievance over the 2014 denial, and, in Julie 2016, negotiated a settlement on plaintiff’s behalf that provided for the referral of his application to a select committee of three CUNY professors.

The complaint further alleges the select committee ultimately.denied plaintiff’s
application for full professorship, and that, in May 2018, plaintiff sent an email to the select committee members stating that “bringing down a fellow colleague so unscrupulously and so unjustly may bring great joy to your miserable lives,” but that it made plaintiff “feel like a piece of dirt” (NYSCEF doc. no. 5 at 3). Plaintiff further stated: “I damn you all to hell-may your bodies and souls burn in eternal fires” (id.). The email resulted in QCC. bringing disciplinary charges against plaintiff for conduct unbecoming of a member of the staff and proposing terminating his employment due to professional misconduct (see NYSCEF doc. no. 6, exhibit B).”

“A cause of action for malpractice cannot be maintained as against an individual attorney hired by plaintiffs union to handle a disciplinary proceeding under the union’s CBA (see Cherry v Koehler & Isaacs LLP, 96 AD3d 507 [1st Dept 2012]). Under such circumstances plaintiff is limited to bringing an action against the union for breach of the duty of fair representation (see Palladino v CNY Centro, Inc., 23 NY3d 140, 152 [2014]) because, in that instance, plaintiffs · malpractice claims are preempted by federal labor law, as those claims arise out of defendant attorney’s representation of the union during plaintiffs disciplinary proceedings under the union’s CBA (see Frontier Pilots Litig. Steering Comm., Inc. v Cohen, Weiss & Simon, 227 AD2d 130, 131 [1st Dept 1996]; see also Klingsberg v Council of Sch. Supervisors & Adm’rs Local 1, 181 AD3d 949, 950-951 [2d Dept 2020]).

Here, plaintiff asserts that he is bringing an action for malpractice and not for breach of
the duty of fair representation, stating, “[t]his case .. .is not filed as a claim in fair
representation … [t]his is an action arising in legal malpractice” (NYSCEF doc. no. 26 at 26). Yet plaintiff does not dispute that Kolko was engaged as the attorney for PSC to handle the arbitration hearing under the CBA on behalf of plaintiff. As such, Kolko cannot be subjected to a malpractice cause of action by a union member.”