Can a former in-house lawyer sue a former employer for discrimination and help prepare a class action against it?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer discharged after seventeen years as in-house corporate counsel believed his firing was retaliation for opposing what he saw as racial discrimination, and wanted to pursue individual and class-wide discrimination claims against his former employer. The committee addressed only the ethical questions, not the legal ones, and noted that the Code of Professional Responsibility applies to in-house counsel in relation to their employers just as it applies to private practitioners in relation to clients.
The committee anchored its analysis in DR 4-101, which bars a lawyer from knowingly revealing or misusing a client's confidences and secrets and defines "secret" more broadly than the attorney-client privilege to reach information the client wants held inviolate or whose disclosure would be embarrassing or detrimental. It cautioned that the lawyer's view that he held no confidential information about discrimination matters might be too simplistic, since such information could have reached him through his work even on unrelated corporate matters. Even so, the committee concluded the Code does not per se bar the lawyer from initiating litigation to redress his own discrimination claims, provided he has an adequate basis for them and exercises care to avoid disclosing confidences and secrets. It reasoned that if courts allow an in-house lawyer to sue under a whistleblower statute or an employee handbook (citing Parker and Nordling), then suing for discrimination, a more fundamental statutory right, is likewise not ethically precluded, distinguishing decisions that barred common-law retaliatory-discharge suits because they would require revealing client secrets.
The committee drew a firm line at representative roles. Relying on Doe v. A Corp., it concluded the lawyer may not serve as class representative, because the duty to vindicate the class would conflict with his duty to protect the former employer's secrets, and may not serve as counsel for the class or a third party, which would raise serious questions under DR 5-108 and the confidentiality rules.
Currency note
This opinion was issued in 1994, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Confidentiality is now addressed by Rule 1.6 and duties to former clients by Rule 1.9. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a former in-house lawyer sue the company for discrimination?
A: The committee concluded the Code does not per se bar the lawyer from initiating litigation to redress his own discrimination claims, provided he has an adequate basis and avoids disclosing the former employer's confidences and secrets.
Q: Can the lawyer use what he learned on the job to build the case?
A: No. The committee concluded DR 4-101 bars the lawyer from using or revealing the former employer's confidences and secrets, a category broader than the attorney-client privilege, and cautioned him to avoid even situations where disclosure might appear likely.
Q: Can the lawyer be the named plaintiff or class representative?
A: The committee concluded he may not serve as class representative, because the duty to the class would conflict with his duty to protect the former employer's secrets.
Q: Can the lawyer act as counsel for the class?
A: No. The committee concluded that serving as counsel for the class or a third party would raise serious questions under DR 5-108 and the confidentiality rules.
Background and rules framework
The opinion applied New York Code DR 4-101(A) and (B) (defining and protecting client confidences and secrets) and DR 5-108 (duties to a former client), as applied to in-house counsel's relationship with the employer-client. The analysis corresponds to ABA Model Rule 1.6 (confidentiality) and Model Rule 1.9 (duties to former clients).
Citations and references
Rules of Professional Conduct:
- New York Code DR 4-101(A), DR 4-101(B), DR 5-108 (applied in the opinion)
- MR 1.6 (confidentiality); MR 1.9 (duties to former clients)
Cases:
- Doe v. A Corp., 709 F.2d 1043 (5th Cir. 1983), in-house lawyer may sue but may not be class representative or class counsel
- Parker v. M&T Chemicals, Inc., 236 N.J. Super. 451, 566 A.2d 215 (1989), in-house lawyer's whistleblower suit allowed
- Nordling v. Northern State Power Co., 478 N.W.2d 498 (Minn. 1991), handbook-based claim allowed
- Eckhaus v. Alfa-Laval, Inc., 764 F. Supp. 34 (S.D.N.Y. 1991), common-law claim barred where it would reveal secrets
- Upjohn Co. v. United States, 449 U.S. 383 (1981), attorney-client relationship of corporate counsel
See also
- NYC Bar Formal Op. 1995-2: A Lawyer's Conflict From Its Own Possible Malpractice
- No sibling opinions yet indexed.
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