In-house lawyers suing their employers or clients for discrimination or a retaliatory firing can't disclose any confidences or secrets, unless they're defending against a counterclaim or affirmative defense, according to a new opinion from the D.C. Bar Legal Ethics Committee.
According to an opinion published online last week by the committee, the D.C. Bar Rules of Professional Conduct don't allow in-house lawyers to disclose confidences – information protected by attorney-client privilege – or secrets – information gleaned that a client has asked to keep secret or that would harm a client – in making a claim.
But the committee found that the rules do allow in-house lawyers to make those disclosures if the employer or client being sued calls into question the lawyer's conduct.
Finally, the committee found that in-house lawyers aren't barred from bringing discrimination or retaliation charges solely because they know that an employer or client may have to disclose confidences or secrets in defending against that claim.
Amar Sarwal, vice president and chief legal strategist for the Association of Corporate Counsel, said that the issue of disclosures is typically fact-specific, but that the latest opinion helped clarify what rules should guide in-house lawyers in proceedings with these types of claims.
"It’s a difficult one to navigate, because you want to, as much as possible, safeguard confidence," Sarwal said. "That's the essence of a relationship."
Sarwal added that he thought it was significant that the committee released an opinion aimed specifically at in-house lawyers, who sometimes aren't considered in legal ethics opinions. "They didn't treat in-house lawyers as second class citizens," he said. "It was a very thoughtful opinion."