In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-1654 & 04-8006

COUNTY, MUNICIPAL EMPLOYEES’ SUPERVISORS’ AND

FOREMEN’S UNION LOCAL 1001 (CHICAGO, ILLINOIS),

Plaintiff-Appellant,

v.

LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA,

Defendant-Appellee.

____________

Appeal (and request for permission to appeal)

from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 C 1677—Robert W. Gettleman, Judge.

____________

SUBMITTED APRIL 5, 2004—DECIDED APRIL 22, 2004

____________

Before POSNER, EASTERBROOK, and ROVNER, Circuit

Judges.

EASTERBROOK, Circuit Judge. The Laborers’

International Union sought to put its Local 1001 into

trusteeship. Authority to approve trusteeships is vested

in an independent hearing officer as a result of a consent

decree settling a racketeering suit by the United States. See

Serpico v. Laborers’ International Union, 97 F.3d 995 (7th

Cir. 1996). Concluding that the Local’s leadership had been

infiltrated by organized crime, was engaged in financial
2 Nos. 04-1654 & 04-8006

mischief, and had undermined the Local’s democratic

processes, the independent hearing officer imposed a trusteeship. After the Trustee assumed control, the law firms

that had previously represented the Local filed a suit—in

the name of the Local rather than of the ousted officers— in

state court. The Trustee promptly fired the law firms

(Winston & Strawn LLP and Faraci & Faraci) and directed

them to take no further action in the Local’s name; meanwhile the International removed the suit to federal court on

the ground that disputes about trusteeships arise under

§302 of the Labor-Management Reporting and Disclosure

Act, 29 U.S.C. §462.

Still purporting to act for the Local, the law firms filed

two motions: first for a remand on the ground that Local

1001 represents only municipal employees and hence is

outside the scope of the LMRDA even though the

International is a “labor organization” covered by that statute; and second (in the event the first should be denied)

for a temporary restraining order that would block the

Trustee from exercising any authority over the Local. The

district judge denied both motions but certified his decision

on the first for interlocutory appeal under 28 U.S.C.

§1292(b). The judge stated that the subject ordinarily would

not meet the criteria of that statute but that, as the law

firms are entitled to appeal from the order denying their

request for a TRO, this court should have the whole dispute

before it. The law firms then filed a petition for leave to

appeal under §1292(b) plus an appeal from the denial of the

request for a TRO. They concede in this court that denial of

a TRO is not appealable—as indeed it is not, for a TRO is

not an “interlocutory injunction” within the meaning of 28

U.S.C. §1292(a)(1). See Sampson v. Murray, 415 U.S. 61, 86

& n.58 (1974). Instead they argue that the district court’s

order is appealable because it has the “effect” of denying an

interlocutory injunction. See Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271, 287-88 (1988); Carson v.
Nos. 04-1654 & 04-8006 3

American Brands, Inc., 450 U.S. 79 (1981). But the only

reason it might have such an effect would be their own

strategy; rather than asking for a preliminary injunction,

the law firms immediately appealed. That maneuver cannot

be allowed to work. Jumping the gun does not turn an

otherwise non-final action into an appealable order. Only

when resort to the regular processes of litigation is unavailing, and the judge is unwilling to make a prompt decision

even though delay erodes or obliterates the rights in

question, does inaction have the “effect” of denying injunctive relief. This district judge has not shown any disposition

to dawdle. Thus the premise underlying the district court’s

use of §1292(b) is false. We could deny the petition for leave

to appeal on that ground alone, but there is a more fundamental problem: the two law firms have no business

purporting to speak on behalf of Local 1001. Both the notice

of appeal (No. 04-1654) and the petition for leave to appeal

(No. 04-8006) have been filed against express instructions

of the litigant purportedly represented.

Article IX §7 of the International’s constitution provides

that a trustee takes full control of a local and exercises all

powers that the local’s directors and officers could exercise.

This entitles the Trustee to fire the law firms whether or

not the LMRDA applies (and, if it does, its provisions give

a trustee the same powers; see 29 U.S.C. §464(c)). A trustee’s powers vest immediately on appointment; judicial

approbation is unnecessary. See, e.g., Letter Carriers v.

Sombrotto, 449 F.2d 915, 921 (2d Cir. 1971) (Friendly, J.).

The law firms insist that this would enable the

International to prevail even if it acts improperly, for a

trustee will block any challenge to his own authority. Yet no

trustee can prevent the ousted officers from suing in their

own names (as in Serpico) and asking the court to restore

them to office. The problem here is that the law firms

purport to represent Local 1001 alone. All litigation must

occur in the name of the real party in interest, see Fed. R.
4 Nos. 04-1654 & 04-8006

Civ. P. 17(a), so the judge was obliged to treat this suit as

exactly what it purports to be: a claim by the Local rather

than by a natural person. Yet these law firms are no longer

authorized to speak for the Local.

Responding to the Trustee’s motion to dismiss the appeals, the law firms assert that they have a fiduciary duty

to the Local and its members that supersedes any instructions from the Trustee. This breathtaking claim depicts

lawyers as ombudsmen authorized to pursue whatever legal

remedies they think a client should favor, whether the

client agrees or not. It is hard to take seriously. Suppose the

board of directors at Alpha Corp. instructs counsel to

commence a suit charging Beta Inc. with patent infringement. After a proxy contest in which one issue is the

prudence of spending corporate funds on this suit, the

directors are thrown out of office, and their replacements

direct counsel to dismiss the suit. According to the view

advanced by our two law firms, the lawyers could refuse to

follow that direction and continue the litigation (presumably at corporate expense) after declaring that they have a

“fiduciary duty to the investors” to prosecute any litigation

they deem meritorious. Twaddle! The fiduciary duty rests

on the directors in our hypothetical, and on the Trustee in

the actual events. Counsel’s responsibility is to give good

advice and, if unsuccessful in persuasion, to implement the

client’s decisions, not to thwart or override them.

These law firms have no responsibility at all, fiduciary or

otherwise, for they have been sacked. Clients may dismiss

their attorneys for any reason, good or bad, and a fired

lawyer has no entitlement—certainly no “fiduciary

duty”—to continue acting on the ex-client’s behalf. See

generally American Law Institute, Restatement of the Law

Governing Lawyers §§ 43, 44 (2000) (collecting authority).

Even if the discharge violates a contract, so that the lawyer

is entitled to damages, the client’s authority to control the

litigation remains absolute; an attorney must withdraw
Nos. 04-1654 & 04-8006 5

from the representation as soon as the client so instructs.

What is more, lawyers are obliged not to oppose or otherwise undermine their ex-client’s legal position, and they

must not reveal confidences they may have received during

the course of the representation. See Restatement §45(2).

These two law firms, by purporting to act on behalf of a

client that has discharged them, and by opposing in court

the position their ex-client has taken on a matter within the

scope of the representation, may well have violated several

disciplinary rules.

One can imagine situations in which someone other than

a corporation’s board (or a union’s officers) would have

authority to speak for the entity, and then an order by the

board or officers firing counsel could be ineffectual. We have

in mind situations of the kind that support derivative

litigation in corporate law, where a court allows investors

to bypass the board and speak for the corporation. Cf. In re

Fraser, 83 Wn. 2d 884, 523 P.2d 921 (1974), overruled on

other grounds by In re Boelter, 139 Wn. 2d 81, 985 P.2d 328

(1999). To the extent this analogy has any force, however,

it is the International and the Trustee who stand in for the

elected officers, and as the Trustee wants counsel gone they

are obliged to go gracefully. The law firms have not sued on

behalf of any officer or member of the Local under a theory

that would permit a member to act derivatively on behalf of

the Local; instead they have flouted the Trustee’s orders

and purported to act as the Local’s lawyers without attempting the sort of demonstration that might justify

derivative litigation. Their approach, if countenanced,

would permit self-help by the ousted officers to thwart

implementation of the LMRDA, the International’s constitution, and the process established by the consent decree.

We dismiss these appeals as unauthorized by the litigant

and refer this matter to the Attorney Registration and

Disciplinary Commission of Illinois. Local 1001, through

counsel engaged by the Trustee, has moved to dismiss the
6 Nos. 04-1654 & 04-8006

complaint and end the litigation; the district judge should

grant that motion promptly.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-22-04