In-House Counsel Wrongful Termination of Employment Claims for Damages
In General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, the California Supreme Court considered "an attorney's status as 'in-house' counsel as it affects the right to pursue claims for damages following an allegedly wrongful termination of employment."
The Supreme Court concluded that, under certain specified circumstances, the attorney could bring such an action. (Id. at pp. 1169-1170.)
In describing these circumstances, the Supreme Court stressed that counsel was not permitted to breach the attorney-client privilege in order to prove the elements of such a claim:
"The in-house attorney who publicly exposes the client's secrets will usually find no sanctuary in the courts. Except in those rare instances when disclosure is explicitly permitted or mandated by an ethics code provision or statute, it is never the business of the lawyer to disclose publicly the secrets of the client. In any event, where the elements of a wrongful discharge in violation of fundamental public policy claim cannot, for reasons peculiar to the particular case, be fully established without breaching the attorney-client privilege, the suit must be dismissed in the interest of preserving the privilege." (General Dynamics, supra, 7 Cal.4th at p. 1190.)
The General Dynamics court also stressed that trial courts should employ various equitable measures to enable attorney plaintiffs to bring such claims, while at the same time protecting their former client's confidences: "The trial courts can and should apply an array of ad hoc measures from their equitable arsenal designed to permit the attorney plaintiff to attempt to make the necessary proof while protecting from disclosure client confidences subject to the privilege. The use of sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings, are but some of a number of measures that might usefully be explored by the trial courts as circumstances warrant. We are confident that by taking an aggressive managerial role, judges can minimize the dangers to the legitimate privilege interests the trial of such cases may present." (General Dynamics, supra, 7 Cal.4th at p. 1191.)
The General Dynamics court summarized these holdings by stating:
"The trial courts have at their disposal several measures to minimize or eliminate the potential untoward effects on both the attorney-client privilege and the interests of the client-employer resulting from the litigation of such wrongful termination claims by in-house counsel. Thus, we also hold that, in those instances where the attorney-employee's retaliatory discharge claim is incapable of complete resolution without breaching the attorney-client privilege, the suit may not proceed." (General Dynamics, supra, 7 Cal.4th at p. 1170.)