Opinions

Ethics Opinion 363

In-House Lawyer’s Disclosure or Use of Employer/Client’s Confidences or Secrets in Claim Against Employer/Client for Employment Discrimination or Retaliatory Discharge


An in–house lawyer may not disclose or use her employer/client’s confidences or secrets in support of the lawyer’s claim against the employer/client for employment discrimination or retaliatory discharge unless expressly authorized by Rule 1.6. If the employer/client puts the lawyer’s conduct in issue, however (e.g., by lodging an affirmative defense or a counterclaim), the lawyer may disclose or use the employer’s confidences or secrets insofar as reasonably necessary to respond to the employer/client’s contention. An in–house lawyer is not prohibited from bringing such a claim against her employer/client merely because the employer/client may find it necessary or helpful to disclose its confidences or secrets in defending against the lawyer’s claim.

Applicable Rule

  • Rule 1.6 (Confidentiality of Information)

Inquiry
The committee has been asked whether an in–house lawyer may disclose or use her employer/client’s confidences or secrets in a claim against the employer/client for employment discrimination or retaliatory discharge. The inquirer also asks whether an employer/client’s perceived need to use its confidences or secrets in defending against such a claim limits the in–house lawyer’s right to bring the claim.

Discussion
Claim by in–house lawyer

As a general matter, an employee in the District of Columbia may pursue a claim against her employer for prohibited discrimination, see, e.g., 42 U.S.C. § 2000e—2000e-17 (2006) (Title VII of 1964 Civil Rights Act); D.C. Code § 2-1401.1—2-1404.04 (2001) (DC Human Rights Act), or retaliatory discharge, Carl v. Children’s Hospital, 702 A.2d 159 (D.C. 1997) (en banc); Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999).[1] We know of no District of Columbia decisions on whether such a cause of action is available to an in–house counsel[2] but assume arguendo that such a lawyer possesses such a right. We address here whether the D.C. Rules of Professional Conduct (“D.C. Rules”) prohibit an in–house counsel from disclosing or using the employer/client’s confidences or secrets in furtherance of such a claim.[3]

With certain exceptions, a D.C. Bar member may not knowingly reveal, or use to the lawyer’s advantage or the client’s disadvantage, a “confidence or secret” of the lawyer’s client. D.C. Rule 1.6(a). In this context, “confidences” are information protected by the attorney-client privilege, while “secrets” are “other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” D.C. Rule 1.6(b). “Secrets” include information gained from third parties that otherwise comes within this definition. D.C. Rule 1.6 cmt. [8]. The prohibitions of Rule 1.6 continue after termination of the lawyer–client relationship. D.C. Rule 1.6(g).

A lawyer may reveal or use client confidences or secrets in some circumstances. Among these is—

to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer, based upon conduct in which the client was involved, or to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client.

D.C. Rule 1.6(e)(3) (emphasis added). Read literally, this provision is limited to defensive use of client information. It does not authorize offensive use of client confidences or secrets by the lawyer in the context of a lawyer–client controversy. Another exception in Rule 1.6 permits a lawyer to use or reveal such information offensively, but only “to the minimum extent necessary in an action instituted by the lawyer to establish or collect the lawyer’s fee.” D.C. Rule 1.6(e)(5) (emphasis added).

The former D.C. Code of Professional Responsibility (“D.C. Code”) took a similar approach, permitting a lawyer to disclose a client’s confidences or secrets where “necessary to establish or collect his fee or to defend himself … against an accusation of wrongful conduct.” D.C. Code, Disciplinary Rule 4-101(C)(4) (emphasis added).

The history of D.C. Rule 1.6(e)(3) further demonstrates its availability solely for defensive purposes. The American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) were adopted in 1983. As their name implies, the Model Rules are recommendations. General Dynamics Corp. v. Superior Court , 876 P.2d 487, 503 n. 6 (Calif. 1994). They have the force of law in a given jurisdiction only if adopted by that jurisdiction’s bar governance authority—typically the highest court.

The District of Columbia Court of Appeals (“Court of Appeals”) has disciplinary and regulatory authority over the D.C. Bar. D.C. Code § 11-2501 (2001). Soon after the ABA promulgated the Model Rules, the D.C. Bar, with the approval of the Court of Appeals, established a special committee, the Model Rules of Professional Conduct Committee (“Jordan Committee”), to review the Model Rules and make suitable recommendations to the D.C. Bar Board of Governors.

In contrast to the D.C. Rules, the Model Rules permit a lawyer, in a controversy with her client, to reveal information relating to representation offensively as well as defensively—

to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Model Rule 1.6(b)(5) (emphasis added); ABA Formal Op. 01-424 (Sept. 22, 2001) (approving offensive use of information in in-house lawyer’s action against client/employer for wrongful discharge).[4] Unlike the D.C. Rules, see D.C. Rule 1.6(e)(5), the Model Rules do not expressly authorize disclosure in an action for a lawyer’s fee. Such an action is subsumed, however, within the first clause of Model Rule 1.6(b)(5).

The Jordan Committee discussed Model Rule 1.6(b)(5) on several occasions. The issue as framed by the committee, though, was not whether to permit generalized use of client confidences and secrets in lawyers’ claims against clients but whether even to permit suits to collect fees.[5] The Jordan Committee’s minutes reflect the removal of the first clause of the model rule provision quoted above but aside from the discussion on whether suits for fees should be permitted, do not reflect the reasoning behind the removal.[6]

The Bar Board of Governors transmitted its recommendations to the D.C. Court of Appeals in November 1986. Proposed Rules of Professional Conduct and Related Comments, Showing the Language Proposed by the American Bar Association, Changes Recommended by the District of Columbia Rules of Professional Conduct Committee, and Changes Recommended by the Board of Governors of the District of Columbia Bar (Nov. 19, 1986) (“Yellow Book”). The Yellow Book discussed various elements of what now are D.C. Rules 1.6(e)(3) and 1.6(e)(5) but did not explain the reasons for retaining the D.C. Code approach of limiting a lawyer’s offensive use of client confidences and secrets to fee collection actions.

In March 1990, the Court of Appeals adopted what now are D.C. Rules 1.6(e)(3) and 1.6(e)(5), as proposed by the Board of Governors.[7] Subsequent D.C. Bar reviews of the D.C. Rules in the early 1990s and in 2001–05 did not recommend changes,[8] and the two provisions remain in force as originally adopted. As noted above, we are unaware of any relevant D.C. judicial decisions—either on the issue presented by the inquiry or on whether any particular cause of action might overcome or preempt the prohibitions of D.C. Rule 1.6(a).

Thus, the legislative and judicial history of the provisions is consistent with their text. Taken together, these guideposts compel the conclusion that an in–house lawyer may not reveal or use employer/client secrets or confidences offensively in making a claim for employment discrimination or retaliatory discharge—unless, of course, such disclosures are authorized by another exception to D.C. Rule 1.6 (e.g., the crime/fraud exceptions in subsection (d)).

Employer/client’s defense against in-house lawyer’s claim

On the second branch of the inquiry, we see nothing in the D.C. Rules that would limit an in-house lawyer’s right to bring a discrimination or retaliation claim against her employer/client because that defendant might perceive a need to reveal its secrets or confidences in order to defend against the claim. As many decisions have noted, courts do not lack tools to protect such information from inordinate disclosure.[9]

Moreover, if the employer/client calls the lawyer’s conduct into question in the context of such a lawsuit, the lawyer may disclose the employer/client’s confidences and secrets as a defensive matter—but only “to the extent reasonably necessary” to respond to the employer/client’s allegations. D.C. Rule 1.6(e)(3).

Conclusions
A D.C. Bar member may not reveal or use the confidences or secrets of her employer/client in connection with the lawyer’s offensive lawsuit against that client, other than in an action for the lawyer’s fee[10] and then only “to the minimum extent necessary.” D.C. Rules 1.6(e)(3), 1.6(e)(5).

We express no opinion on whether there may be instances where a statute or case law dealing with employment discrimination or retaliatory discharge overcomes the prohibitions of D.C. Rule 1.6(a).[11] The D.C. Rule, however, does not provide for such preemption within its four corners and the District of Columbia courts have yet to rule on the issue.[12]

A lawyer may disclose such information defensively, however, “to the extent reasonably necessary” to respond to specific allegations by the client or to defend against a civil claim.  D.C. Rule 1.6(e)(3). The former context could include responding to affirmative defenses to a discrimination or retaliatory discharge action; the latter could include responding to a client counterclaim in such a lawsuit.[13] D.C. Rule 1.6 cmt. [25]. Moreover, other exceptions in Rule 1.6, such as the crime-fraud exceptions of subsection (d), might be available in appropriate instances. Nothing in the D.C. Rules limits an in–house lawyer’s right to bring such a claim because the client/employer might perceive a need to reveal its secrets or confidences in order to defend against the claim.

We are mindful of the important public policy that encourages redress in cases of employment discrimination and retaliatory discharge. We note, however, that this committee’s jurisdiction is limited to interpreting the D.C. Rules—which are promulgated by the Court of Appeals—as we find them. Whether Rule 1.6(e)(3) is overcome in such a case or, if not, should be revised to permit a lawyer to reveal or use employer/client confidences or secrets offensively in such a case, necessarily remains a matter for the courts.

Published: October 2012

[1] This committee does not opine on laws or regulations aside from the D.C. Rules of Professional Conduct (“D.C. Rules”). It may discuss such law, however, where appropriate to put its opinions in context.
[2] See Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 883-86 (D.C. 1998) (assuming that retaliatory discharge of lawyer by law firm can give rise to cause of action against firm).
[3] Two D.C. Court of Appeals decisions involving lawyers’ actions against their former law firms for retaliatory discharge do not address disclosure of confidences or secrets of the law firms or the firms’ clients. Umana v. Swidler & Berlin, Chartered, 745 A.2d 334 (D.C. 2000); Wallace, 715 A.2d 873.
[4] The former ABA Model Code of Professional Responsibility, like the former D.C. Code, limited permissible revelations to those necessary to collect a lawyer’s fee. Spratley v. State Farm Mut. Automobile Ins. Co., 78 P.3d 603, 608 (Utah 2003) (citing ABA Annotated Model Rules of Professional Conduct 68 (5th ed. 2003)). By comparison, the Model Rule “‘enlarges the [Model Code] exception to include disclosure of information relating to claims by the lawyer other than for the lawyer’s fee; for example, recovery of property from the client.’” Id. (quoting ABA Annotated Model Rules of Professional Conduct 68 (5th ed. 2003) (emphasis in original); accord Burkhart v. Semitool, Inc., 5 P.3d 1031, 1041 (Mont. 2000).
[5] Jordan Committee Minutes (July 10, 1984; Nov. 17, 1984).
[6] Id. (As noted herein, the former D.C. Code permitted only defensive use of such information except in the fee collection context).
[7] The rules took effect January 1, 1991.
[8] E.g., D.C. Bar Rules of Professional Conduct Review Committee, Proposed Amendments to the District of Columbia Rules of Professional Conduct, Report and Recommendations 30 (Jan. 31, 2005) (“The Committee … saw no compelling policy reasons to change any of the disclosure options currently included in [Rule 1.6]”).
[9] E.g., Van Asdale v. International Game Technology, 577 F.3d 989, 995-96 (9th Cir. 2009); Crews v. Buckman Lab. Int’l, Inc., 78 S.W.3d 852, 864 (Tenn. 2002); Spratley v. State Farm Mut. Automobile Ins. Co., 78 P.3d 603, 609-10 (Utah 2003); Burkhart v. Semitool, Inc., 5 P.3d 1031, 1041–42 (Mont. 2000).
[10] We do not think that an in-house lawyer’s salary constitutes a “fee” within the meaning of Rule 1.6(e)(5). See O’Brien v. Stolt-Nielsen Transp. Group, Ltd., 838 A.2d 1076, 1084, 1086 (Conn. Super. 2003) (by implication).
[11] See, e.g., Van Asdale v. International Game Technology, 577 F.3d 989 (9th Cir. 2009) (Sarbanes-Oxley whistleblower provision preempts attorney-client privilege); Willy v. Administrative Review Bd., U.S. Dep’t of Labor, 423 F.3d 483 (5th Cir. 2005) (same; whistleblower provisions of federal environmental laws); Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173 (3rd Cir. 1997) (same; title VII of Civil Rights Act of 1964); Stinneford v. Spiegel Inc., 845 F. Supp. 1243 (N.D. Ill. 1994) (same; Age Discrimination in Employment Act); Rand v. CF Indus., Inc., 797 F. Supp. 643 (N.D. Ill. 1992) (same); Crews v. Buckman Lab. Int’l, Inc., 78 S.W.3d 852 (Tenn. 2002) (same; common–law retaliatory discharge). [12] A lawyer who believes she has a cause of action against her former employer/client that might overcome the strictures of Rule 1.6(e)(3), but does not want to risk violating Rule 1.6(a), presumably could file a bare–bones complaint that does not disclose protected information and then seek a ruling that her cause of action overcomes the Rule 1.6 restriction against disclosure. If she obtained a favorable ruling from the court, she then could file an appropriate amended complaint.
[13] The requirement that disclosure be limited to what is “reasonably necessary” to respond to an allegation of impropriety, D.C. Rule 1.6(e)(3), is one of proportionality. Thus, an employer/client’s discharge letter to the in-house lawyer that makes what the lawyer believes are inaccurate assertions about the lawyer’s conduct quite possibly would not justify the filing of a lawsuit, available to the public, that reveals client/employer confidences or secrets; filing a complaint under seal might be a different story. See D.C. Rule 1.6 cmt. [23] (“[D]isclosure should be no greater than … necessary to vindicate innocence [and] should be made in a manner that limits access to the information to … persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable”); Eckhaus v. Alfa–Laval, Inc., 764 F. Supp. 34 (S.D.N.Y. 1991) (negative internal performance review not a sufficient basis for revealing employer/client information in ensuing slander action).

October 2012