Can GCs Use Confidential Info When Suing Their Employer?
If you ever find yourself in litigation against your employer, you may be wondering if you can use confidential information you gained through your position in your lawsuit.
For in-house counsel, this question is particularly tricky as you may be privy to certain confidential information that most other employees are not exposed to. And because of your position, it may be unfair to the employer if you can suddenly open the curtain on everything that happened at your company simply because you were fired or discriminated against.
As a result, state bar rules often set out specific instances about when in-house counsel can and cannot use confidential information.
In the District of Columbia, for example, the rules provide that former or current in-house counsel may not reveal confidential information to support a claim against her employer for discrimination or wrongful discharge unless the employer puts the lawyer's conduct at issue or some other exception to confidentiality applies, writes the American Bar Association.
In general, D.C.'s rules allow in-house counsel to disclose protected information defensively, and not offensively. If the employer sues the in-house counsel, the confidentiality rule allows lawyers to reveal or use confidences or secrets "to the extent reasonably necessary." The rule continues even after the lawyer has left the company and the lawyer-client relationship has ended, writes the ABA.
However, there are some exceptions to this general rule. For example, in-house counsel can reveal confidential information offensively for lawyer-client fee disputes. Still, the information revealed must be reasonably limited to the issues at hand, and a vindictive lawyer cannot spill the beans about everything just for the sake of spilling the beans.
Of course, each state's professional-responsibility rules are different, so do your research if you are considering a lawsuit against your employer. While the general rule may prohibit offensive use of confidential information, you should know that there are plenty of exceptions.
- Is it Ethical for an In-House Counsel to Whistleblow? (FindLaw's In House)
- Attorney-Client Privilege: 3 Questions for In-House Counsel to Ask (FindLaw's In House)
- In House Counsel Tip: Don't Steal Food from Your Company (FindLaw's In House)