In‐house counsel claims against a corporate employer and access to privileged corporate communications. An analysis and a proposal
| DOI | https://doi.org/10.1108/JFC-03-2013-0021 |
| Date | 12 July 2013 |
| Pages | 272-286 |
| Published date | 12 July 2013 |
| Author | John W. Gergacz |
| Subject Matter | Accounting & finance |
In-house counsel claims against
a corporate employer and
access to privileged
corporate communications
An analysis and a proposal
John W. Gergacz
School of Business, University of Kansas, Lawrence, Kansas, USA
Abstract
Purpose – Thepurpose ofthis paper isto evaluatein-house counsel’sdualrole in the contextof a wrongful
discharge claim against his corporate employer and its effect on privileged corporate com munications.
Design/methodology/approach – The paper takes the form of legal research and analysis.
Findings – A multipart factors test is proposed focusing on three areas: first, rationale for discharge;
second, in-house counsel’s claim; and third, risks to privileged corporate information.
Originality/value – The paper creates new means to evaluate corporate privilege and in-house
counsel access.
Keywords Privileged communications, Corporatecounsel, Employers, Communications
Paper type Research paper
I. Introduction
In-house counsel is a combination of corporate employee and the corporation’s lawyer.
As a lawyer, in-house counsel is independent from the corporate client. However, as an
employee, in-house counsel is under the corporate client’s control. This intermingling
of independence and subordination, along with the blending of the lawyer function
with that of the employee, and the corporation acting as both a client and as the
employer, makes analyzing in-house counsel’s role a delicate task[1].
This article will propose a model for untangling these threads in the context of an
in-house counsel’s wrongful discharge claim. A multi-factors approach similar to that
used in the corporate privilege case, Garner v. Wolfinbarger, will be proposed[2].
Whether the claim should proceed will be based on these factors rather than on
categorizing in-house counsel as “lawyer” or “employee”.
In addition, the proposed approach includes a means to determine whether in-ho use
counsel should have access to privileged corporate communications. The key factor will
be the relationship between counsel and the communications. The corporate privilege
case, In re Braniff, Inc. provides the analytical structure[3].
However, as a prelude, a cursory note about at-will employment and wrongful
discharge will be offered.
II. Very brief background of at-will employment and wrongful discharge[4]
Wrongful discharge is predicated on an employment relationship. Although
that relationship is, at its base, a contract, its contours are not solely contractual.
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1359-0790.htm
Journal of Financial Crime
Vol. 20 No. 3, 2013
pp. 272-286
qEmerald Group Publishing Limited
1359-0790
DOI 10.1108/JFC-03-2013-0021
JFC
20,3
272
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