I presented an article and spoke on the topic of representing attorneys as plaintiffs in employment disputes at the April 11-12, 2014, National Employment Lawyers Association Eighth Circuit conference in Des Moines, Iowa. This presentation and article described my extensive experience representing senior in-house counsel, including General Counsel and other officer-level attorneys at major public and private corporations. In this presentation, I stressed how attorneys generally have the same employment rights as other employees, although unique defenses can arise when prosecuting these cases. This blog summarizes this topic.
Although privilege issues can arise in this kind of advocacy, these issues cannot present insurmountable obstacles and can be navigated through efficiently and effectively if the right authority is cited. For instance, a client’s right to terminate his or her legal counsel for any reason does not mean that lawyers employed by companies can be terminated without reason or cause, especially when statutory, contract or common law rights may have been violated. In other words, ethical rules governing the attorney-client relationship cannot trump these other rights.
In a similar vein, while attorney-client communications are privileged and an attorney’s work is generally considered confidential “work product” which cannot without the client’s permission be shared with anyone other than the client, these confidentiality obligations cannot foreclose an attorney from disclosing these same communications and this same work product if these communications and documents are relevant to proving a legal claim or claims. Decades of published decisions in state and federal court unquestionably establish that public policy requires that these confidentiality protections must yield to the need to present all relevant evidence in a disputed claim.
Despite the unique nature of the attorney-client relationship, attorney employees have the same fundamental employment rights as other employees — to be provided equal employment opportunity, to be free from unlawful retaliation, to ensure contracts are honored, or to enforce any other statutory or common-law based right in the workplace. My successful experience over 25 years in representing attorneys in leadership roles in Corporate America has helped to establish that “lawyers are people too” in our judicial system. Attorneys seeking legal counsel in employment disputes, however, really need experienced advocates to help them enforce their workplace rights.