When an in-house lawyer for Lockheed Martin attached some of the company's attorney-client privileged documents to her filings to support her charge of race discrimination and retaliation with the U.S. Equal Employment Opportunity Commission (EEOC), the company concluded she had engaged in misconduct so egregious and unethical that it fired her for cause.
Decisions from many courts and professional responsibility boards establish that in-house lawyers remain bound by Rule 1.6 of the Rules of Professional Conduct to preserve the confidentiality of attorney-client communications, even when alleging unlawful treatment by their employer.
As such, it seemed the aerospace company had an air-tight case for firing her.
Not so fast, ruled Judge Doty in federal court in Minnesota in Deering v. Lockheed Martin Corp.
He noted that Lockheed Martin did not raise such an objection when the attorney had earlier disclosed the privileged documents to her own lawyer, who cited them in pre-charge negotiations with the company. As such, the employee could argue that Lockheed Martin "drew the foul" by not cautioning her against including privileged documents in her threatened EEOC charge.
The lesson for employers: whenever dealing with claims of unlawful treatment by in-house lawyers, remind them that they remain bound by Rule 1.6 and may not use or disclose privileged communications to make their case. For in-house attorneys, keep in mind your obligation to follow Rule 1.6. If you seek to use privileged information, a waiver should be sought and/or the documents should be redacted to preserve the privilege.