Can an in-house lawyer use the company's confidential information to support her own discrimination or retaliatory-discharge claim against the employer?
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This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 363 (published October 2012) addresses whether an in-house lawyer may disclose or use her employer/client's confidences or secrets to support the lawyer's own claim against the employer for employment discrimination or retaliatory discharge, and whether the employer's potential need to use its confidences in defending limits the lawyer's right to sue. The opinion assumes, without deciding, that such a cause of action is available to in-house counsel and analyzes only the confidentiality question under the D.C. Rules.
The opinion concludes that D.C. Rule 1.6 bars the offensive use the inquirer describes. Under Rule 1.6(a) a lawyer may not knowingly reveal or use to the client's disadvantage a confidence or secret, and that duty continues after the representation ends (Rule 1.6(g)). The self-defense exception in Rule 1.6(e)(3) is, by its terms, limited to defensive use, that is, establishing a defense to a charge or claim against the lawyer or responding to the client's specific allegations. The only offensive exception in the D.C. Rules is Rule 1.6(e)(5), which permits disclosure "to the minimum extent necessary" in an action to establish or collect the lawyer's fee. The opinion traces the rule's drafting history: although Model Rule 1.6(b)(5) permits a lawyer to reveal information "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client" (and ABA Formal Op. 01-424 approved offensive use in an in-house lawyer's wrongful-discharge action), the D.C. drafters (the Jordan Committee and the Board of Governors) removed that broad offensive clause, leaving only the fee exception.
The opinion concludes two further points. First, if the employer/client puts the lawyer's conduct in issue, for example through an affirmative defense or a counterclaim, the lawyer may disclose the employer's confidences and secrets defensively, but only to the extent reasonably necessary to respond under Rule 1.6(e)(3). Second, nothing in the D.C. Rules limits the in-house lawyer's right to bring the underlying claim simply because the employer may perceive a need to reveal its own confidences or secrets to defend; courts have tools to protect such information from inordinate disclosure. The Committee expresses no opinion on whether a statute or case law on discrimination or retaliatory discharge might override Rule 1.6(a), noting that the D.C. courts have not ruled on the question and that any revision of the rule is a matter for the Court of Appeals.
In practice
Under the D.C. rules as they stood at the time of the opinion, an in-house lawyer pursuing her own discrimination or retaliatory-discharge claim may not disclose or use the employer/client's confidences or secrets offensively to support that claim. The opinion concludes the self-defense exception in Rule 1.6(e)(3) is defensive only, and the single offensive exception in the D.C. Rules is the fee-collection exception in Rule 1.6(e)(5). This differs from Model Rule 1.6(b)(5), which the D.C. drafters declined to adopt in full.
The opinion concludes that if the employer puts the lawyer's conduct in issue through an affirmative defense or counterclaim, the lawyer may then disclose the employer's confidences defensively, to the extent reasonably necessary. It also concludes that the in-house lawyer is not barred from bringing the claim merely because the employer may need to reveal its own confidences to defend. The opinion expressly leaves open whether external employment-discrimination law might override Rule 1.6(a). Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Can an in-house lawyer use company confidences to prove her own discrimination or retaliation claim?
A: The opinion concludes no. D.C. Rule 1.6(a) bars revealing or using a client's confidences or secrets to its disadvantage, and the Rules' only offensive exception is an action for the lawyer's fee (Rule 1.6(e)(5)); the self-defense exception in Rule 1.6(e)(3) is defensive only.
Q: Why does the D.C. answer differ from the ABA Model Rule?
A: The opinion concludes the D.C. drafters deliberately removed the Model Rule 1.6(b)(5) clause that allows offensive disclosure "in a controversy between the lawyer and the client." ABA Formal Op. 01-424 approved such offensive use under the Model Rule, but D.C. retained only the fee exception.
Q: Can the lawyer disclose confidences if the employer raises a defense based on her conduct?
A: The opinion concludes yes, defensively and within limits. If the employer puts the lawyer's conduct in issue through an affirmative defense or counterclaim, Rule 1.6(e)(3) permits disclosure to the extent reasonably necessary to respond.
Q: Is the in-house lawyer barred from suing because the employer may need to reveal its confidences to defend?
A: The opinion concludes no. Nothing in the D.C. Rules limits the lawyer's right to bring the claim because the employer may perceive a need to disclose its confidences in defense; courts have tools to protect such information.
Background and rules framework
The opinion interprets D.C. Rule 1.6 (Confidentiality of Information): the general prohibition in Rule 1.6(a) on revealing or using a client's confidences or secrets to the client's disadvantage, the definitions of "confidences" and "secrets" in Rule 1.6(b), the continuation of the duty after the representation ends in Rule 1.6(g), the defensive self-defense exception in Rule 1.6(e)(3), and the offensive fee-collection exception in Rule 1.6(e)(5). It compares these provisions with Model Rule 1.6(b)(5) and traces the drafting history of the D.C. rule.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.6(a), 1.6(b), 1.6(e)(3), 1.6(e)(5), 1.6(g) / Model Rule 1.6 (confidentiality; confidences and secrets; self-defense and fee exceptions)
Statutes:
- 42 U.S.C. 2000e et seq. (Title VII of the Civil Rights Act of 1964)
- D.C. Code 2-1401.1 et seq. (D.C. Human Rights Act)
Cases:
- Carl v. Children's Hospital, 702 A.2d 159 (D.C. 1997) (en banc), retaliatory-discharge cause of action
- General Dynamics Corp. v. Superior Court, 876 P.2d 487 (Cal. 1994), in-house counsel wrongful-discharge claims
Other opinions cited:
- ABA Formal Op. 01-424 (2001): offensive use of information in an in-house lawyer's wrongful-discharge action (the opinion declines to follow it under the D.C. Rules)
See also
- ABA Formal Op. 01-424: In-House Lawyer Discharge Suit
- ABA Formal Op. 99-415: Former In-House Lawyer Conflicts
- DC Ethics Op. 364: Confidentiality and Ineffective-Assistance Claims
- DC Ethics Op. 379: Charging Liens and Confidentiality
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-363
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