Severe possible ethical and discovery pitfalls are posed by defending lawyers in workplace cases against their former law firms. Our profession is not immune from improper workplace practices, but allegations of immunity based on Attorney-Client Privilege (ACP), Attorney Work Product (AWP) and the Litigation Privilege are likely to be met by any action on behalf of an injured attorney. Anti-SLAPP motions can also be brought on a charge that an employment discrimination case is based on the covered petitioning operation of a law firm-i.e., in his/her legal representation of the Non-Party Clients (NON-PTY-CLT) of the defendant firm, your client was dismissed for sub-par results.
The purpose of the defense is that the defendant law firm would genuinely like to be able to explain the faulty performance of your attorney client that contributed to his/her termination, but they are sadly prohibited by their ethical responsibilities to the NON-PTY-CLT.2 The defense would seriously restrict any attorney’s right to raise the question of unlawful discharge where the defense to the argument Such a wide application of the right will essentially strip from most lawyers who routinely use privileged information the defense of wrongful termination laws.
Unfortunately, the defense stance has legal support, and the courts have ruled that dismissal of a case is mandatory where claims are based on confidential knowledge and necessary defenses. “Where the claims of a discharged attorney against the employer can not be established without violating the privilege of attorney-client, “the case must be dismissed in order to maintain the privilege.
Therefore, in analyzing or planning a case against a law firm or corporate in-house legal department on behalf of a former attorney, there are a variety of important factors, including:
Avoid any argument that allows your client to rely on confidential information or documents, unless based on information or documents for which ACP has been waived by any NON-PTY-CLT involved.4 While the court is expected to apply a balancing test if the defense relies on ACP and AWP for its defenses, there is none if your client relies on those documents for his/her claims;
Prepare to face repeated attempts to dispose entirely of the case of your client with the argument that the protection of the employer depends on vital ACP correspondence and confidential details relating to the NON-PTY-CLT of the firm, whose cases your client may be accused of having mishandled in various unspecified ways, which can not be revealed by the defense due to the duty to defend further claims
Prepare to hunker down for a discovery fight, and do not let slip definitive discovery answers that the termination ground relates to unexplained privileged issues that constitute the sub-par performance of legal services on behalf of a NON-PTY-CLT by your customer, none of which are explained;
Be creative in seeking possible non-privileged sources of evidence and records relating to the supposed reason for the termination of your client in the public record, pleadings lodged, correspondence with opposing counsel, answers exchanged to the discovery, etc.
Example: The defendant law firm maintains that the client, who was dismissed shortly after returning from surgery, was allegedly terminated for failing to file a confirmed response to a verified complaint, further obstructing the discovery that all necessary and important records and evidence are based on privileged documents that cannot be ethically revealed. In various non-privileged sources, evidence to refute the pretextual defense can be found, including:
Timing of the Court Docket pleadings filed, which could indicate that:
Other counsel or before the complainant’s attorney was associated in the case filed a non-verified answer;
No attempt has ever been made by the defendant law firm to request a revised checked response later in the months;
Any party to the suit has not filed a motion to strike a response or to amend the complaint;
No evidence that the matter has ever been raised by the solicitor complainant or the NON-PTY-CLT, lack of notice or punishment short of termination;
In contact with opposing counsel, never addressed;
Lack of any firm or NON-PTY-CLT injury;
Proof that some business lawyers have been publicly disciplined for misuse of pleading and discovery or prosecuted for malpractice that has potentially affected the company and NON-PTY-CLT, without any adverse job action. In this respect, when a law firm claims that the dismissed attorney falls below the acceptable standard of practice, it opens up the issue of what that standard is, all of which, including its more expensive and severe mistakes, would be visible in the public record;
The attorney client was described by the company’s managing partner as a “key player” on the litigation team prior to the surgery. He/she is said to be “not a team player” after surgery; and
The defendant itself provides claims that distort the statute, such as the supervising partner argument that a non-confirmed response subjected NON-PTY-CLT to an immediate judgment [not without a prior motion for which the court must liberally grant permission to file an amended verified answer], or that a Motion for Judgment on the Pleadings may be requested after the beginning of the trial [it cannot, the defect is waived]
Evasive and definitive discovery reactions should not be embraced and then rest comfortably on the premise that the defense has failed to express any particular empirical justification for the termination and is is ultimately without a defense at trial. The central defense is that according to the Laws of Professional Conduct, the defendant law firm employer is barred from submitting all such exculpatory evidence, and thus the case must be dismissed. It is up to the complainant’s counsel to prove that this is not the case.