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University's Suit Against Former GC Tests Bounds of Attorney-Client Privilege
The suit was filed in response to Wendy Morris' explosive suit, alleging systematic sexual discrimination and Title IX violations
The National Law Journal
May 20, 2008
In an unusual lawsuit that raises questions of how far the attorney-client privilege extends, the Board of Trustees of Florida Gulf Coast University has sued its former general counsel to prevent her lawsuit against them from continuing.
Claiming attorney Wendy Morris is violating attorney-client privilege with her suit, the trustees are seeking an emergency injunction and a jury trial to prevent her from "leaking" confidential information about the Fort Myers, Fla.-based university.
The suit -- tantamount to a gag order -- was filed in early May in Lee County Circuit Court. No ruling has yet been made.
The suit was filed in response to Morris' explosive suit, filed in federal court in Florida in April. Morris, who was fired in July 2007, alleges systematic sexual discrimination and Title IX violations. Others have also filed similar lawsuits against the school on the same issues, including the Equal Employment Opportunity Commission.
The suit against Morris alleges that she is revealing "sensitive information protected by the attorney-client privilege." The suit says that the information is "completely immaterial" to her retaliation suit, and that the release of it is in violation of the Florida Rules of Professional Conduct and substantive law.
"The situation is compounded by the fact that Morris is attempting to use the media to litigate her case at this early state, clearly to gain an apparent advantage in litigation," states the suit.
Among the "improper" disclosures, the suit alleges, are information related to the EEOC suit; a gender discrimination lawsuit filed by Dr. Johnny McGaha; a complaint of gender discrimination by an employee of the Lutgert College of Business; FGCU employee evaluations; and the state of Florida Division of Financial Services appointment of outside counsel for FGCU.
Morris declined comment, and her attorney, Rod Smith, a Tallahassee solo attorney, did not return calls for comment.
Aaron Behar of Lydecker, Lee, Behar, Berga & deZayas of Miami, who represents the university, did not return calls for comment.
Two legal ethics professors interviewed said that the university's suit against its former in-house lawyer will likely not gain traction. Under the Florida Bar Rules of Professional Conduct, there is an exception to the attorney-client privilege rule when lawyers are suing their former employers or need to defend themselves in lawsuits and protect their reputations.
"The question is, 'Is she revealing too much?'" said Bob Jarvis, who teaches legal ethics at Nova Southeastern College of Law in Davie, Fla., "As long as she can show that it's germaine to her defense or prosecution, she will be fine. If she is revealing extraneous information that doesn't help her or apply to her suit -- just to embarrass the employer -- that would be wrong." Practically speaking, though, it's difficult for employers to prove that their former lawyers have revealed too much, he said. "Lawyers will always argue that they had to reveal it," he said, adding that the vast majority of judges in such cases would side with the fired lawyer and "let the chips fall where they may." Tony Alfieri, director of the University of Miami Center for Ethics and Public Service, agreed, adding that the American Bar Association has promulgated a formal opinion stating that former in-house lawyers may pursue wrongful discharge claims against former employers "as long as client information is properly protected." Cases in Montana, Tennessee and California have upheld the rights of former in-house lawyers to sue their employers, he said.
"Nothing would prohibit a retaliation claim," Alfieri said. "This was done to protect the due process rights of lawyers"
