Category Archives: Attorney-Client Privilege

Quirky Question # 175: In-House Counsel Barred From Qui Tam Action Against Former Employer

Question:

I know you have written in the past about former in-house counsel suing their former employers in connection with their terminations. We have a slightly different twist on that situation. Our former in-house counsel has filed a qui tam lawsuit against our firm based on information he learned while employed and his supposition about what occurred after his employment ended. He apparently does not think this violates any Rules of Professional Conduct. His conduct, however, seems questionable to us, since he learned the underlying facts during the period he was employed. Can you provide any guidance? Answer→

Quirky Question # 155, Privilege Issues

Quirky Question # 155

A class action discrimination lawsuit was filed against our company. The proposed class included all African American employees who were employed during a specified time period. This group includes our former Vice President of Human Resources. We learned recently that the plaintiffs’ lawyers have met on several occasions with our former VP of HR. This troubles us since he was involved in numerous attorney-client privileged communications, both with in-house and outside counsel. Moreover, the early discovery that plaintiffs’ counsel served suggests that they have seen any number of documents that we generated to help us evaluate our workforce, our staff reductions, and whether there was any evidence of discrimination in our treatment of employees. Is it legit for the plaintiffs’ law firm to meet with our former VP of HR, even if he is in the protected class they are trying to represent? Answer→

Reviewing Employee’s Email, Quirky Question # 144

Quirky Question # 144:

I’m confused.  I thought we could review our employee’s email communications when sent out on our company’s equipment.  Our electronic communications policy states clearly that we reserve the right to do so.

I also thought we could review even privileged communications between our soon-to-be ex-employee and his attorney, if these communications were sent on our email system.  I’m now being advised that we cannot do so.  Can you offer any guidance? Answer→

Searching a Former In-House Counsel’s Computer, Quirky Question # 111

Quirky Question # 111:

We fired one of our in-house counsel.  He now has sued us for a variety of claims, all of which we think are bogus.  At the time his employment ended, we required him to turn in his company-owned computer.  We are reviewing it and finding that it contains a treasure trove of information useful to our defense of his case.  First, it contains evidence that corroborates our justification for the discharge decision – he just was not competent.  Second, it contains his ruminations about his litigation strategy, as well as  memos he prepared for his own lawyer regarding his potential claims.  Given that he composed all of these memos on his company-issued computer and left the memos on the computer when he departed, we assume that we can access and use this material?  Any problems with our assumption? Answer→

Litigation by In-House Counsel, Quirky Question # 50

Quirky Question # 50:

We are a small to mid-size company, with a relatively small legal department.  We have a General Counsel.  He, in turn, supervises two other attorneys.  The General Counsel joined our company about two years ago, and frankly, his relationship with C-level executives has not been ideal.  His relationship with the CEO has been particularly strained.  The CEO has advised me (Head of HR) on several occasions that she just does not trust the General Counsel.  She has expressed doubts about his judgment, his advice, and, critically, his loyalty to the Company.

The CEO recently asked me to initiate the process to remove the General Counsel from our firm.  I don’t know whether this leaked out, but soon thereafter, the General Counsel began sharing with me his concerns about whether our company is complying with the law in a number of areas squarely within his area of expertise.  He advised me that he informed the CEO and CFO of his evaluation but they appear to be ignoring his advice.  I feel as though I’m caught in the middle.

Assuming that we follow through with our plans to terminate the General Counsel, do we have any risks?  My assumption is that everything he has been told in the course of his job is protected by the attorney-client privilege and could not be revealed in any lawsuit against the company.  Similarly, I assume that he could not contend that he was fired in retaliation for bringing the supposedly illegal activities to our executives’ attention, inasmuch the concerns he articulated are squarely within his job responsibilities as our chief legal officer.  Am I missing anything? Answer→

Email Communications with Lawyer, Quirky Question # 18

Quirky Question # 18:

We recently terminated one of our executives.  One of our standard practices when we terminate a senior executive is to check carefully his/her email communications for the preceding twelve months.  When we checked this executive’s email communications, we discovered approximately eight messages to and from a private law firm.  The message subject line was:  “Personal, My Discharge.”

We briefly skimmed these messages and found that they were communications between our former employee and her lawyer regarding her termination and potential claims she could bring against our company.  What can we do with information?  Can we share it with the company’s attorneys?  Was it a mistake for us even to have skimmed these emails?  (Incidentally, we have a “Computer Use Policy,” stating that the company owns all computer equipment and that we reserve the right to review any and all email communications sent on company computers.) Answer→