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In recent years, we have represented a steadily increasing number of lawyers in employment matters. Some of them have claimed that they were discriminated against because of their race, gender, or physical disabilities. Others have claimed that adverse actions were taken against them because they engaged in legally protected activity — complaining of discrimination, pursuing union activities, or blowing the whistle on illegal conduct in the workplace. Such employment claims by lawyers can raise thorny ethical issues. As a threshold matter, it has long been established that attorneys have rights as employees, including those afforded by federal civil rights laws. Twenty years ago, for example, the Supreme Court recognized in Hishon v. King & Spalding that a law firm could be sued for gender discrimination by a female associate who had been denied partnership. But Elizabeth Anderson Hishon was an employee of a law firm. A law firm’s relationship to its clients is typically that of an independent contractor. By contrast, government attorneys and corporate in-house counsel are actually employees of their clients. In both theory and practice, those employment relationships put the lawyers’ fundamental duty of loyalty to their client in direct conflict with their rights as employees. And that brings up some difficult questions: Doesn’t a lawyer’s duty of loyalty prohibit the filing of an employment claim against the client/employer? If not, doesn’t the filing of such a claim create a conflict of interest, which prohibits the lawyer from any ongoing representation of the client/employer? Finally, how does a lawyer prove an employment claim against a client without violating the attorney-client privilege? ‘REPREHENSIBLE BREACH’? Courts wrestling with these issues have recognized that the burgeoning ranks of lawyers/employees compel a balancing of their professional duties with their employment rights. The emerging consensus is that lawyers enjoy legal protection against discrimination and retain other employment rights, even when their employers are also their clients. Not all employment rights of attorneys, however, are created equal. Courts have been more willing to acknowledge the employment rights of in-house counsel that arise from statutes, while they have construed more restrictively common law exceptions to the at-will employment doctrine. A number of decisions have expressly recognized that attorneys do not surrender their rights under Title VII of the Civil Rights Act of 1964 when they sign on as in-house counsel. But what if a corporate attorney sues the client/employer for alleged discrimination during the course of that employment? Does the client/employer engage in unlawful retaliation if it exercises its time-honored right to select its own counsel by discharging that “disloyal” attorney, who has asserted claims protected by law? Forty years ago in a bar disciplinary case, the Supreme Court of Connecticut articulated the “common understanding and common conscience of the bar” that for a lawyer to sue a client whom he still represents “constitutes a reprehensible breach of loyalty and a violation of the preamble to the Canons of Professional Ethics.” Forty years later in an employment discrimination case, the client’s discharge of a lawyer for such disloyalty may indeed constitute unlawful retaliation. A MATTER OF COMPROMISE When such a dispute arises in the course of ongoing employment, courts resolve the competing interests by balancing the lawyer’s ethical duties against his employment rights. The client/ employer’s interest in loyalty may take precedence if the lawyer/employee’s pursuit of the employment claim directly conflicts with his existing professional duties. In Jones v. Flagship International, a 1986 case, an attorney asserted a discrimination claim while she was employed as the defendant’s equal employment opportunity program manager, and was responsible for representing the company in EEO matters. The U.S. Court of Appeals for the 5th Circuit ruled that, in light of her obligations to her client/employer, Benita Jones’ actions in filing a discrimination complaint and soliciting other employees to join her in a class action were not protected activity under Title VII. On the other hand, if a lawyer’s employment claim can be pursued without compromising his ongoing legal services, the employer may have an obligation to accommodate the claim. In Santa Clara County Counsel Attorneys Association v. Woodside, for example, attorneys in the county counsel’s office filed suit against their government employer to compel it to bargain over wages, hours, and terms of employment as required by state statute. The Supreme Court of California ruled in 1994 that the subject matter of the suit was unrelated to the legal services that the lawyers were providing to their employer, and therefore the suit did not present a conflict of interest that trumped their statutory rights as government employees. Absent a conflict that “actually compromised client representation,” the court chose to disregard the antagonism that the suit had apparently generated between the lawyers and the client/employer “since such antagonism in the labor relations context is unfortunately commonplace.” The court concluded that while the county was free to reassign its lawyers “nonpunitively” in response to their suit, it could not discharge them, because to do so would render “meaningless” the statutory rights asserted by the lawyers. But the court made clear that there would be no such constraint on a client’s right to discharge its attorney in the absence of an employment relationship: “We do not, by this holding, approve the general proposition that an attorney suit against a present client is ethically permissible. When the attorney is an independent contractor, and when no statute protects an attorney’s employment rights, it may well be the case that the attorney’s general duty of loyalty dictates that the attorney not sue the present client and that such a suit may subject the attorney to discipline — a question not before us here.” KEEP THEIR CONFIDENCES Even where the subject matter of the claim does not present a conflict, the complaining lawyer’s conduct in asserting that claim may cross the ethical line, and cost her the protection of the employment laws. In Douglas v. DynMcDermott Petroleum Operations Co., for example, the 5th Circuit in 1998 recognized that the plaintiff’s duty of loyalty to her client/employer did not exempt her from the scope of Title VII, and did not preclude her from exercising her right to oppose discrimination by her employer. But Kordice Douglas had been fired for disclosing confidential information to a third party — information that she contended supported her claim of discrimination. The court first concluded that Douglas’ unauthorized disclosures had breached both her duty of confidentiality and her duty of loyalty to her client. Since Douglas ostensibly made her disclosures in support of her discrimination claim, however, the 5th Circuit assumed for purposes of the analysis that her communication qualified as an opposition to unlawful employment discrimination. The court proceeded to weigh Douglas’ right to oppose allegedly discriminatory practices against her employer’s reasonable expectation that its in-house counsel would abide by her duties of confidentiality and loyalty: “There may arise instances where the employee’s conduct in protest of an unlawful employment practice so interferes with the performance of his job that it renders him ineffective in the position for which he was employed. In such a case, his conduct, or form of opposition, is not covered by [Title VII].” Because Douglas had opposed her employer’s discrimination by disclosing confidential information in violation of her ethical duties, the 5th Circuit determined that her conduct was not protected under Title VII. In reaching this conclusion, the court made it clear that dismissal of Douglas’ claim was compelled not by the fact that she was a lawyer, but by the fact that her breach of client confidentiality in asserting the claim was unethical conduct not entitled to legal protection. Suppose that Douglas’ claim had not been dismissed: Could she have proved her case without crossing the ethical line and divulging privileged information? Maybe not. As the California Supreme Court reiterated in General Dynamics Corp. v. The Superior Court (1994), “except in rare instances when disclosure is explicitly permitted by an ethics code provision or statute, it is never the business of the lawyer to disclose publicly the secrets of the client.” AN ‘UNACCEPTABLE’ ALTERNATIVE In O’Brien v. Stolt-Nielsen Transportation Group, Ltd., et al., a pending case in Connecticut, the plaintiff’s lawyer contends that he was constructively discharged as the defendant client’s general counsel after he urged an independent investigation and cessation of his employer’s allegedly illegal conduct. While recognizing that the question before it was what evidence the plaintiff would be permitted to present to prove his allegations, the trial court observed that “the answer is not determined solely on what is admissible under evidentiary rules, but also on what evidence O’Brien may or may not, as a matter of his professional obligation and ethics as a lawyer, be prevented from disclosing to the trier of fact, or anyone else.” The judge concluded that his only choice was to prohibit Paul O’Brien from divulging client confidences and secrets: “The alternative, to allow O’Brien to use such confidential information in this case, in violation of the rules which govern his professional conduct, is unacceptable. It would put this court in the position of standing aloof and uninvolved while observing, and possibly appearing to condone, a breach of professional duty.” As the ranks of lawyers/employees expand, so does the recognition of their employment rights and the number of claims they make against clients/ employers. Such cases pose special challenges for employment law practitioners, not the least of which is having attorneys for clients. But perhaps the most important challenge is advocating the emerging rights of the lawyers/employees without dishonoring the fundamental constraints of the attorney-client relationship. Mona Lyons and Peter F. Butcher are D.C. attorneys specializing in employment disputes. They have practiced together for 10 years and can be reached at [email protected].

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