(concurring):
For the reasons ably stated by Judge Feinberg, I concur in the view that a federal court should not disqualify an attorney on ethical grounds from representing a party in a pending lawsuit in the absence of a reasonable basis for believing that his or her unprofessional conduct may affect the outcome. An “appearance of impropriety” orTah attorney’s part would rarely have this effect.1 The attorney is the client’s choice. *1248Disqualification is wasteful and time-consuming. Only where the attorney’s unprofessional conduct may affect the outcome of the case is there any necessity to nip it in the bud. Otherwise conventional disciplinary machinery should be used and, if this is inadequate, the organized bar must assume thé burden of making it effective as a deterrent.
Regardless of the foregoing principle, however, in the present case I would reverse the district court’s decision on the ground that there is no “appearance of impropriety” in the representation by an association-salaried lawyer such as Mr. Sandner of one set of dues-paying members pursuant to its legal services program in a case involving other dues-paying members with conflicting interests. Obviously if NYSUT, either through its charter, by-laws or some other authoritative official action, had prohibited its counsel from representing members in such a situation or had specified the terms and conditions under which legal services could be provided to members, those provisions would govern and the association’s counsel would be obligated to conduct himself accordingly. But absent such a bar or blueprint, an organization financed with dues received from all members may properly take a position that benefits some members at the expense of others, provided it acts reasonably, in good faith and without hostility or arbitrary discrimination. Humphrey v. Moore, 375 U.S. 335, 349-50, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). If it is proper for the organization to do so, there is no impropriety in its counsel doing likewise, subject to the same conditions.
The relevant legal principle has been clearly stated by the Supreme Court with respect to the analogous question of fair union representation in Humphrey, supra:
“But we are not ready to find a breach of the collective bargaining agent’s duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another. In Ford Motor Co. v. Huffman, 345 U.S. 330 [73 S.Ct. 681, 97 S.Ct. 1048], the Court found no breach of duty by the union in agreeing to an amendment of an existing collective bargaining contract, granting enhanced seniority to a particular group of employees and resulting in layoffs which otherwise would not have occurred. ‘Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.’ Id., at 338 [73 S.Ct. 681]. Just as a union must be free to sift out wholly frivolous grievances which would only clog the grievance process, so it must be free to take a position on the not so frivolous disputes. Nor should it be neutralized when the issue is chiefly between two sets of em*1249ployees. Conflict between employees represented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining . and . grievance processes.
“As far as this record shows, the union took its position honestly, in good faith and without hostility or arbitrary discrimination. ... By choosing to integrate seniority lists based upon length of service at either company, the union acted upon wholly relevant considerations, not upon capricious or arbitrary factors. The evidence shows no breach by the union of its duty of fair representation.”
In my view the same principles govern NY-SUT’s administration of its legal services plan.
Although NYSUT has not taken any official position with respect to the issues at stake in this case, its members have adopted a legal services plan authorizing its salaried counsel to represent such members as he determines in good faith to have claims or defenses that are job-related and meritorious. Nothing in the plan requires prior approval by NYSUT of such representation or limits the representation to legal controversies with third parties, as distinguished from representation of NYSUT or some of its members in differences with other members. The sole standard is whether in the opinion of NYSUT’s counsel the claim or defense is job-related and meritorious, regardless of the identity or membership of other parties involved in the legal controversy.
This standard strikes me as fair and reasonable. I fail to detect in it any appearance of impropriety, as long as NYSUT’s counsel, in the course of representing the male HPETs, does not express. or imply without authority that he speaks for NY-SUT. Membership in NYSUT is entirely voluntary. A dues-paying member should recognize that situations will arise where the successful-representation of one member or a group of members may benefit them at the expense of other members. Common examples are disputes over seniority rules, claims of unfair layoffs, transfers and denials of promotion. A person joining the organization and paying dues should therefore anticipate that if he or she becomes embroiled in a job-related controversy with NYSUT or another member, (1) NYSUT’s counsel must make a choice and render services only to those members believed in good faith by him or her to have meritorious job-related claims or defenses, (2) NYSUT will not provide counsel to members whose claims or defenses are believed by its .counsel in good faith to be frivolous or not job-related, and (3) in a dispute between members of the organization its counsel, in representing those believed to have a meritorious cause, will be financed by NYSUT through funds derived in part from dues-paying members who are adverse parties in the litigation.
NYSUT’s provision of legal services to one member or group of members believed in good faith to have meritorious job-related claims against other members should not be labelled as . creating an “appearance of impropriety” simply because the other members may take adverse positions believed by NYSUT’s counsel to be frivolous or meritless. Nor should the organization, absent a contrary provision in its plan, be forced to represent members believed by it to be asserting such frivolous claims or defenses. Cf. Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 349-50, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). None of this is intended to imply that we, as distinguished from NYSUT or its counsel, have any views regarding the merits of the claims of the male and female HPETs respectively.
It could be argued that the NYSUT legal services plan vests its counsel with too wide a discretion to determine what members’ claims are meritorious or job-related in an intra-organizational dispute, or that the plan poses too great a risk of erroneous, invidious, fraudulent or discriminatory decisions by its counsel in such matters. If so, the remedy rests in the hands of NYSUT’s *1250members who have the power to change or modify its legal services plan. In addition, of course, they would be entitled to seek relief from the court upon a showing that NYSUT’s counsel had abused his powers or acted in bad faith or for reasons unconnected with the merits of the cause which he chose to advance.
In the recent decision of Jacobs v. Board of Educ., East Meadow Union Free School District, App.Div., 409 N.Y.S.2d 234 (2d Dept. 1978), which was handed down since the argument of this appeal, the Appellate Division, Second Department, of the New York Supreme Court reversed a lower court decision that had been relied upon by appellees and decided that there was no impropriety in representation by NYSUT’s counsel of one of its members in a so-called “one-on-one” dispute with another member with respect to seniority, even though the organization had not taken any more of an “official” position with respect to the merits of the dispute than has NYSUT in the present case. Assuming it is proper for an organization’s counsel to represent one member against another in a “one-on-one” seniority dispute, despite the absence of any organizational position with respect to the issue in dispute, I find no rational basis for distinguishing Jacobs from the present case.
Applying these relevant legal principles here, it was not improper for NYSUT’s counsel to provide legal representation to the male HPETs whose job-related claim was reasonably believed by him to be meritorious. I would therefore hold not only that an “appearance of impropriety” is an insufficient ground, by itself, to justify a court’s disqualification of an attorney during the prosecution of a case absent a reasonable basis for believing that such an appearance may affect the outcome, but also that in any event there was no such “appearance of impropriety” on the facts of this case.
. Our decision in General Motors Corporation v. City of New York, 501 F.2d 639 (2d Cir. 1974), is an example of a case where a combination of an attorney’s “appearance of impro*1248priety” plus his violation of another disciplinary rule might have affected the outcome. There we held that a lawyer who had, as an attorney for the Antitrust Division of the Department of Justice, been involved with a Government investigation of and lawsuit against General Motors alleging monopolization of the market for city buses, was barred from later representation in private practice of the City of New York in its antitrust suit for damages against General Motors based on essentially the same claims, albeit with respect to a later point in time. Although we there noted the importance of a lawyer’s avoiding an appearance of impropriety as required by Canon 9, we also emphasized the additional specific prohibition of D.R. 9-101(B), not applicable here, to the effect that “A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee,” 501 F.2d at 648-49. Implicit in this Disciplinary Rule is the concern that the former Government attorney might in the later private action use information with respect to the matter in issue which was gained in confidence as a public employee and was unavailable to the other side.