concurring:

I concur in Parts II and III A of the court’s opinion, and in the affirmance of the district court’s judgment. I do not agree with the vast extention of immunity from suit under section 301 of the Labor-Management Relations Act which the majority undertakes, gratuitously, in Part III B of its opinion.

The case before us involves the actions of an attorney who, as a full time employee of a union, undertook the representation of a union member with respect to a grievance with the employer. We need only decide whether the rule of Atkinson v. Sinclair Refining Co., 370 U.S. 238 , 82 S.Ct. 1318 , 8 L.Ed.2d 462 (1962), insulates the union’s in-house counsel from a claim for damages by a union member who alleged that the attorney was guilty of ordinary negligence. There is no occasion for us to reach the more difficult question of whether outside counsel should be afforded the same protections.

Nevertheless, in what can only be characterized as a learned discussion of a hypothetical question, the majority undertakes to apply the rule of Atkinson to outside counsel. The majority’s discussion is unnecessary to its opinion; more unfortunately it is also wrong. Only because the majority opinion may be misunderstood, and therefore misapplied, do I feel obliged to write separately to rebut its dicta.

The attorney, Berthelsen, was at all relevant times an employee of the union. As a union-employed attorney, he should not ordinarily be liable personally to a union member for actions relating to the union’s representation responsibilities. In such a case, the reason behind the rule in Atkinson demands that liability be fixed on the union itself. Moreover, the union’s liability for the conduct of its attorney-employee would be judged against a standard of arbitrary or discriminatory conduct or conduct *1263 amounting to bad faith and would be determined in a federal cause of action under Section 301. See Vaca v. Sipes, 386 U.S. 171, 187-88 , 87 S.Ct. 903, 915-16 , 17 L.Ed.2d 842 (1967).

I do not challenge the application of these rules to the instant case. 1 Those historical reasons that moved Congress to enact section 301(b) freeing union officials from liability for conduct undertaken on behalf of the union or any of its members in furtherance of the representational responsibilities of the union, are described in Atkinson, 370 U.S. at 247-249 , 82 S.Ct. at 1324-1325 . The present facts accord with the reason for the rule stated in Atkinson . Berthelsen was a full-time employee. If such an employee, simply because his normal responsibilities required that he act as an attorney for a union member, were to be exposed to the full measure of personal liability for his ordinary negligence, the history of Danbury Hatters would be repeated. As Atkinson records, it was to avoid a recurrence of the Danbury Hatters case that section 301(b) was enacted.

The hypothetical case about which the majority writes extensively stands in sharp contrast. The history of the Danbury Hatters case, and the Congressional debate leading to the enactment of Section 301(b), see 93 Cong.Rec. 5014, 5041-42 (1947), simply have no application to an independent agent. To be sure, an attorney who is not a union employee but is retained by a union to represent it and its members in grievance disputes with an employer is an “agent” of the union 2 and of the union member as well, in the sense that all attorneys are agents of their clients. Such an attorney is an example, but not a typical one, of the many independent agents who provide professional services to unions. 3 The question is whether outside counsel, as an independent agent of the union and one of its members, is entitled to the protection of the Labor-Management Relations Act as a defense to an action by the union member client for damages.

The majority concludes that such an independent agent is entitled to that protection. It relies upon “sound policy reasons as well as established precedent____” Ante, at 1256. Believing that relevant precedent points exactly in the opposite direction, it is unnecessary for me to buttress my disagreement with the majority upon policy considerations.

*1264 The linchpin of the majority’s case based upon precedent is Atkinson v. Sinclair Refinning Co., supra. That case holds that the union is the sole source of recovery for the wrongful acts of union officials and members committed in the bargaining process and causing injury to third parties. As I have noted, Atkinson speaks of union “agents” as being within the protection of the rule, but the Court was referring to the acts of union member/officers. Every case cited by the majority on this issue likewise involved union “officials,” including business agents employed by the union, 4 or rank and file workers. 5 Independent research has uncovered no case in which the protection of Atkinson was extended to one who was neither a member nor an officer of the union. 6 Nevertheless, I believe that Section 301(b) is properly interpreted to insulate a union’s non-member employees because Congress’ intention was to avoid the debilitating effect on a union that would attend personal judgments against those who are vital to the organization’s continued existence. It is the policy behind exempting members and officers that militates in favor of also immunizing the union’s non-member employees.

The absence of authority for the proposition that agents who are neither members nor employees of the union are protected from suit under section 301 is not surprising. As Atkinson itself points out, the genesis of section 301(b) was a reaction against the Danbury Hatters case, in which union busting by oppressive judgments against union officers and employees was condoned. Judgments against independent third parties, such as outside counsel, because of their negligent acts which harm union members have no necessary economic impact upon the union itself. Attorneys are too plentiful and their rates too competitive to expect a judgment against a particular attorney to result in an attempt by that attorney to recapture the loss by higher rates to his union client.

A judgment against outside counsel for malpractice is not a judgment for which one of its independent clients, the union, is also liable under normal rules of tort law. There is simply no malpractice exposure to the union. 7

Only several months ago this court decided Aragon v. Federated Department Stores, Inc., 750 F.2d 1447 (9th Cir.1985). That case reversed a judgment dismissing a legal claim against the union’s outside counsel. The claim was analyzed by the court as a pendent state claim and thus completely outside the preemptive arm of section 301(a).

Three years ago we decided Weitzel v. Oil Chemical and Atomic Workers, 667 F.2d 785 (9th Cir.1982). There, we also reversed a judgment dismissing a claim against' outside counsel by a union member.

The majority distinguishes each of these cases on a theory which I believe to be novel: When a union-employed attorney undertakes to represent a union member, the union-employed attorney does not nec *1265 essarily become the member’s attorney. With this premise in mind, the majority reviewed the sketchy facts in Aragon and Weitzel . It concluded that in each case the attorney was incidentally outside counsel for the union, but in the particular matter involved in those cases, the attorneys were acting as the personal attorney of the union member and not on behalf of the union. Accordingly, the protections of section 301 were not available to the attorney. Returning to the instant case, the majority concludes that the union-employed attorney, Berthelsen, was acting for the union and not personally on behalf of the union member. Thus, as agent for the union, but not the member, section 301 applies. The majority extends that peculiar notion to outside counsel.

I cannot accept the unusual role which the majority carves out for some attorneys in order to distinguish Aragon and Weitzel . All attorneys owe allegiance to their clients with respect to the subject of their representation. Attorneys representing a union may, with complete ethical propriety, undertake the simulataneous representation of a union member with respect to a grievance in which the union has no adverse interest. Such an undertaking in no way diminishes the duty which the attorney owes to each client. Each representation is distinct from the other. Each requires the same high degree of judgment, skill and discretion which society properly demands of persons occupying positions of trust and honor.

In the handling of a particular grievance, the union may refer a union member to its retained counsel. The act of referral by the union does not dilute the duty owed by the attorney to the referred client upon accepting the representation. The union may pay the fee to such an attorney. The duty of care owed by an attorney to a client does not depend upon the source of his fees. In summary, there can be no exception to the universally understood rule that when an attorney undertakes to represent a client in a particular matter, he is the attorney for and owes complete allegiance to that client for so long as the relationship continues.

If I correctly understand its views, the majority would recognize a hyphenated attorney: the union-attorney who may represent a union member, but not as a client. It reaches this conclusion, in my opinion, only because of a felt need to identify outside counsel closely as the union’s attorney in order to claim the protection of Atkinson . As I have previously indicated, the protection of that case and section 301(b) turns upon totally different factors: union membership or employment by the union.

The majority seriously undercuts its basic premise by acknowledging that unions may sue their attorneys for ordinary acts of negligence. Ante, at 1259. No principled reason is apparent why public policy justifies the immunity of outside attorneys from suits by one client, the union member, but not another, the union itself.

Although I agree with the result in the instant ease, from the foregoing comments it is clear that I believe the majority opinion should be read with caution.

. In another case, the facts may dictate a different result. An attorney who is a full-time employee of a union may, with the consent of the union and the member, undertake to represent the member with respect to such matters as would justify concluding that the attorney was the independent counsel for the member. In such a case, analysis would proceed as if the attorney, for liability purposes, were independent of the union. Here, the facts do not justify such an analysis. It appears that representation of union members by the union attorney was a usual and customary function of the union, assigned routinely by it to in-house counsel.

. References in Atkinson to the inability to sue union "agents” under section 301(b) should be read in context. Atkinson involved a suit against 24 committeemen. The employer’s complaint alleged that these workers, as "agents” of the union’s international, had led a strike in violation of the contract. 370 U.S. at 240 , 82 S.Ct. at 1320 . The Court in no way implied that all “agents” of the union, in the common law sense, were to be afforded the same protection against suit as were these committeemen, who were both union members and officers. Similarly, the reference by the Supreme Court to "conventional principles of agency law” must also be put in its context; the reference was not part of a discussion of the third clause of section 301(b), which we must interpret, but of the second clause of that section, which is not under consideration here. 370 U.S. at 248 , 82 S.Ct. at 1324 . Common law agency principles have been considered relevant only as to whether the union may be sued for the acts of its officials with regard to wildcat strikes and other extra-contractual activity, see, e.g. North River Energy Corp. v. United Mine Workers, 664 F.2d 1184 (11th Cir.1981) (common law agency principles hold union liable for all acts of its officers and agents within the scope of their general authority). The portion of section 301(b) immunizing union members and officers from suits was, in fact, an abrogation of common law agency principles.

. Included in this category of independent agents are insurance brokers, fund managers, economists, accountants, statisticians, consultants, and many others. What sets outside counsel apart from other independent agents is his direct role as the attorney for a particular union member.

. United Steelworkers v. Lorain, 616 F.2d 919, 924 (6th Cir.1980), cert. denied, 451 U.S. 983 , 101 S.Ct. 2313 , 68 L.Ed.2d 839 (1981); Williams v. Pacific Maritime Association, 421 F.2d 1287 (9th Cir.1970); Balestreri v. Western Carloading, 530 F.Supp. 825, 831 (N.D.Cal.1980); Suwanchai v. International Broth. of Electrical Workers, 528 F.Supp. 851, 852 (D.N.H.1981); Henry v. Radio Station KSAN, 374 F.Supp. 260, 267 (N.D. Cal.1974).

. Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 402 , 101 S.Ct. 1836, 1838 , 68 L.Ed.2d 248 (1981) (involved union members; stated that "In Atkinson ... the Court held that § 301(a) [sz'c ] ... does not authorize a damages action against individual union officers and members when their union is liable for violating a no-strike clause in a collective bargaining agreement” (emphasis added)); Hardline Electric, Inc. v. International Brotherhood of Electrical Workers Local 1547, 680 F.2d 622 , 624 n. 1 (9th Cir.1982); Universal Communications Corp. v. Burns, 449 F.2d 691, 693-94 (5th Cir.1971) (per curiam).

. See, e.g., Republic Steel Corp. v. United Mine Workers of America, 570 F.2d 467 , 478 (3rd Cir.1978) (officers and members); Sinclair Oil Corp. v. Oil, Chemical and Atomic Workers Int. Union, 452 F.2d 49, 52 (7th Civ. 1971) (members).

. The union may be responsible under the applicable restrictive standard for referring its members to incompetent attorneys.