John Gaal's Ethics Corner

Q. I have a client who used to be in-house counsel at a company. She has been terminated under circumstances that suggest discrimination. In order to prove her case, we need to rely on certain 'confidences' and 'secrets' she received in the course of her employment. Is that okay?

A. Although the ABA has opined that such disclosures may be permissible under the Model Rules, a different result is required under New York's Code of Professional Responsibility.

In ABA Formal Op. 01-424, the Committee on Ethics and Professional Responsibility concluded that it is permissible for an attorney in this situation to reveal client secrets or confidences reasonably necessary (but only as reasonably necessary) to establish her employment termination claim. Critical to this determination, however, was the specific language of the Model Rules. Model Rule 1.6(b)(2) expressly permits a lawyer to reveal information relating to representation of a client where reasonably necessary to 'establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ' ' The Committee found that a retaliatory discharge or similar claim by a former in-house attorney against her employer is a 'claim' within the meaning of Rule 1.6.

Contrast this with the language of DR 4-101 in New York's Code. That provision permits a lawyer to reveal client confidences or secrets 'necessary to establish or collect the lawyer's fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct.' As recently held by the First Department in Wise v. Consolidated Edison Company of New York, 282 A.D. 2d 335 (1^st. Dept. 2001), an affirmative claim by a former in house attorney against his or her employer seeking damages for wrongful discharge does not fall within the 'defend against an accusation' exception of DR 4-101.

Thus, as is often the case, your situation must be assessed in light of the specific ethical code under which you practice.

John Gaal is a partner in the Syracuse office of Bond, Schoeneck & King, LLP, and is a member of the Editorial Board of this publication. Send your ethics questions to him at [email protected].

Q. I have a client who used to be in-house counsel at a company. She has been terminated under circumstances that suggest discrimination. In order to prove her case, we need to rely on certain 'confidences' and 'secrets' she received in the course of her employment. Is that okay?

A. Although the ABA has opined that such disclosures may be permissible under the Model Rules, a different result is required under New York's Code of Professional Responsibility.

In ABA Formal Op. 01-424, the Committee on Ethics and Professional Responsibility concluded that it is permissible for an attorney in this situation to reveal client secrets or confidences reasonably necessary (but only as reasonably necessary) to establish her employment termination claim. Critical to this determination, however, was the specific language of the Model Rules. Model Rule 1.6(b)(2) expressly permits a lawyer to reveal information relating to representation of a client where reasonably necessary to 'establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ' ' The Committee found that a retaliatory discharge or similar claim by a former in-house attorney against her employer is a 'claim' within the meaning of Rule 1.6.

Contrast this with the language of DR 4-101 in New York's Code. That provision permits a lawyer to reveal client confidences or secrets 'necessary to establish or collect the lawyer's fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct.' As recently held by the First Department in Wise v. Consolidated Edison Company of New York , 282 A.D. 2d 335 (1 st . Dept. 2001), an affirmative claim by a former in house attorney against his or her employer seeking damages for wrongful discharge does not fall within the 'defend against an accusation' exception of DR 4-101.

Thus, as is often the case, your situation must be assessed in light of the specific ethical code under which you practice.

John Gaal is a partner in the Syracuse office of Bond, Schoeneck & King, LLP, and is a member of the Editorial Board of this publication. Send your ethics questions to him at [email protected].