Can an in-house lawyer who was fired for refusing to make a false statement sue for wrongful termination if the suit requires revealing information about the representation?

Plain-English summary

A lawyer served as in-house counsel and general manager of a company. While applying for a patent on the company's behalf, the lawyer learned the product was actually invented by the company's customer, not the company. The patent application required swearing the company was the "original and first inventor," and a false statement on such an application exposes the signer to criminal prosecution. The lawyer refused to swear to that and was fired. The lawyer now wants to sue for wrongful termination, which would require disclosing information about these events. The opinion asks whether the lawyer may do so, and answers yes, qualified.

The opinion sets aside whether a former in-house lawyer can state a wrongful-discharge claim at all, treating that as a question of substantive law beyond the scope of an ethics opinion; it assumes for discussion that such a claim can be stated. It then applies Oregon RPC 1.6, which bars revealing information relating to the representation absent informed consent or a listed exception. The governing exception is Oregon RPC 1.6(b)(4), which permits disclosure "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." The opinion concludes that if a legally viable and nonfrivolous claim exists, the lawyer may make disclosure under that exception.

The opinion limits the scope of permitted disclosure. The information revealed must be reasonably necessary to establish the claim asserted, citing OSB Formal Ethics Op. No. 2005-104, and the lawyer must reveal it in the least public manner, including by insisting on an appropriate protective order. It cites In re Huffman as an example of a lawyer disciplined for disclosing confidential information beyond what was required to assert a viable defense. It also notes that the duty to protect the company's information continues after the employment ends.

In practice

The opinion holds that a fired in-house lawyer's right to disclose is anchored to the self-defense exception in Oregon RPC 1.6(b)(4): disclosure is permitted only to establish a viable, nonfrivolous claim, only to the extent reasonably necessary, and in the least public manner available. Per the opinion, the analysis turns on necessity and restraint, with a protective order identified as the mechanism for limiting public exposure of the information. Verify the current text of Oregon RPC 1.6 before relying on any specific point.

Common questions

Q: Can a fired in-house lawyer sue for wrongful termination if the suit would reveal client confidences?

A: Yes, qualified. The opinion concludes that Oregon RPC 1.6(b)(4) permits disclosure to establish a claim in a controversy between the lawyer and the client, provided a legally viable and nonfrivolous claim exists.

Q: How much can the lawyer disclose?

A: Only what is reasonably necessary to establish the claim. Per the opinion, the lawyer must reveal the information in the least public manner, including by seeking an appropriate protective order, citing In re Huffman on the danger of over-disclosure.

Q: Does the opinion decide whether the wrongful-termination claim itself is valid?

A: No. The committee treated whether a former in-house lawyer can state a wrongful-discharge claim as a matter of substantive law beyond the scope of the opinion, and assumed for discussion that the claim can be stated.

Q: Does the duty of confidentiality end when the employment ends?

A: No. The opinion states the lawyer remains bound to protect information relating to the representation even after termination of employment, citing OSB Formal Ethics Op. No. 2005-23.

Background and rules framework

The opinion interprets Oregon RPC 1.6 (confidentiality of information relating to the representation), which corresponds to Model Rule 1.6. The operative provision is the self-defense exception, Oregon RPC 1.6(b)(4), permitting disclosure to establish a claim or defense in a controversy between the lawyer and the client. The opinion also references ORS 9.460(3) on the lawyer's duty to maintain client confidences.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality; self-defense exception at 1.6(b)(4))

Statutes:

• ORS 9.460(3) (lawyer's duty to maintain client confidences)

Cases:

• In re Huffman, 328 Or 567, 983 P2d 534 (1999) (discipline for disclosure beyond what was required to assert a viable defense)
• Balla v. Gambro, Inc., 145 Ill 2d 492, 584 NE2d 104 (1991) (some courts decline to recognize wrongful-discharge tort for in-house counsel)
• Herbster v. North American Co. for Life & Health Insurance, 150 Ill App 3d 21, 501 NE2d 343 (1986)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-104 (disclosure limited to what is reasonably necessary)
• OSB Formal Ethics Op. No. 2005-23 (rev 2014) (duty to protect client information continues after termination)

See also

• OSB Ethics Op. 2005-104: Confidentiality and the Self-Defense Exception
• OSB Ethics Op. 2005-23: Former Lawyer's Duty to Protect Client Confidences
• OSB Ethics Op. 2005-17: Former Client and Use of Confidential Information

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-136.pdf