Retaliation And Whistleblower Claims By In-House Counsel - Whistleblowing

With recent legislative efforts to expand whistleblower rights and protections, many employers have found themselves confronting an increase in the number of whistleblower reports, complaints, and lawsuits. As part of this trend, many employers are also beginning to see, or anticipate, whistleblower activity and retaliation claims among even their own corporate counsel and compliance professionals. These kinds of complaints, reports, and lawsuits brought by in-house attorneys present particular challenges and complications for the company. Can an attorney bring a claim or lawsuit against an employer that is also his or her client? Can the company’s attorney collect a bounty award for acting as a whistleblower? Can the attorney-whistleblower disclose the company’s confidential and privileged information as part of a claim or lawsuit? How should the company work with an attorney in the workplace who has reported internally or to the government, or who has filed a claim or lawsuit? What can the company do to prevent charges and lawsuits brought by in-house counsel?

These critical questions require careful consideration and a thorough understanding of the state of the law. This white paper provides an explanation of the extent to which in-house attorneys can bring retaliation or whistleblower claims, collect monetary incentives for whistleblowers, and use a company’s confidential and privileged information to litigate a legal claim. Further, the paper identifies employer defenses in such litigation and steps an employer presented with a complaint or claim by an in-house attorney can take to protect its confidential information. Finally, we offer practical steps an employer can and should take when responding to and managing an in-house attorney who has made a complaint or filed a lawsuit while still employed, as well as practical recommendations for preventing such claims from arising at all.

Whistleblower Protections and In-House Counsel

Historically, some state courts have expressed skepticism about whether an in-house attorney can sue his or her employer (and client) on the basis of allegations that the employer terminated or otherwise retaliated against the attorney for engaging in statutorily protected activity. Increasingly, however, state and federal courts and federal agencies have allowed such claims and even permitted the disclosure of privileged and confidential information in the course of litigating them. The section below provides an overview of the permissibility of whistleblower claims by in-house attorneys and canvasses the types of information they may use to litigate their claims under various federal whistleblower statutes and in state common law wrongful termination actions.

Sarbanes-Oxley

The Sarbanes-Oxley Act (SOX or Sarbanes-Oxley), enacted in 2002 to introduce sweeping corporate reforms, contains civil and criminal anti-retaliation provisions intended to protect employees who blow the whistle on corporate fraud. Under SOX’s civil whistleblower provisions, employees of publicly traded companies (and their privately held subsidiaries) who provide information and/or assist in an investigation into an employer’s violation of SOX, Securities and Exchange Commission (SEC) regulations, or securities fraud are protected from employer retaliation.¹ Sarbanes-Oxley is enforced by the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor (DOL), meaning that employees must first file their claims with that agency. Claims of retaliation under SO X are investigated and adjudicated by OSHA, with ultimate review available in the U.S. Court of Appeals for the Federal Circuit.

Both the DOL’s Administrative Review Board (ARB) and the U.S. Court of Appeals for the Ninth Circuit have allowed in-house counsel to pursue SOX retaliation claims. In Van Asdale v. International Game Technology, the Ninth Circuit held that two in-house attorneys could state a claim of retaliatory discharge under SOX.² The court rejected the defendant company’s argument that the state’s rules of professional conduct created a per se bar against such suits.³ The Ninth Circuit also rejected the idea that the claim should not go forward because it could not be litigated without disclosure of attorney-client privileged information. To address the issue of attorney-client privileged information, the court recommended equitable measures “to minimize the possibility of harmful disclosure.”⁴ By way of example, the court indicated that testimony could be limited to the alleged disclosures of shareholder fraud (i.e., the protected activity), without referencing litigation-related discussions that also took place in the same meeting.⁵

In Jordan v. Spring Nextel Corporation, the ARB similarly allowed an in-house attorney to assert claims of retaliation under SOX, despite the fact that bringing the claim entailed disclosure of privileged and confidential information.⁶ The ARB reasoned that the mandatory disclosure requirements for counsel set forth in the Code of Federal Regulations title 17, section 205.3, which are described further below, and the whistleblower protections under SO X, should be read together to provide a remedy for attorneys alleging that they have been retaliated against for making a required disclosure.⁷ The ARB also noted that the SEC regulation regarding attorney disclosure of material violations was modeled on the American Bar Association’s (ABA) Model Rules of Professional Conduct, Rule 1.6, which “allows an in house attorney to use privileged information to establish a retaliatory discharge claim against the attorney’s employer.”⁸ Consequently, “if an attorney reports a ‘material violation’ in-house in accordance with SEC’s Part 205 regulations, the report, though privileged, is nevertheless admissible in a SOX Section 806 proceeding as an exception to the attorney-client privilege in order for the attorney to establish whether he or she engaged in SOX-protected activity.”⁹ The ARB observed, however, that it remained within the ALJ’s discretion to issue a protective order to preserve the confidentiality of the privileged communications offered to support the retaliation claim.¹⁰

The Dodd-Frank Act

Enacted in 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) ushered in expansive new incentives and protections for whistleblowers.¹¹ Under Dodd-Frank’s amendments to the Securities Exchange Act (SEA), whistleblowers who voluntarily provide original information to the SE C, which leads to an SEC enforcement action and recovery of more than $1 million, can collect a monetary award ranging between 10 and 30% of the monetary sanctions collected.¹² Whistleblowers also enjoy new protections from retaliation under Dodd-Frank. Specifically, a whistleblower possessing a “reasonable belief ” that he or she provided information that “relates to a possible securities law violation” and suffers retaliation as a result can bring a claim of retaliation in federal court.¹³ For retaliation claims, Dodd-Frank provides a generous statute of limitations, ranging between six and 10 years, and remedies that include reinstatement, double back pay plus interest, attorneys’ fees, litigation costs, and expert witness fees.¹⁴

Although Dodd-Frank places limitations on the entitlement of compliance professionals and company attorneys to collect bounty awards, as is described more fully below, it contains no special provisions regarding retaliation claims by in-house counsel. Furthermore, the SEC’s implementing regulations provide that “the anti-retaliation protections apply whether or not you satisfy the requirements, procedures and conditions to qualify for an award.”¹⁵

It is worth noting that the regulations governing attorneys cited by the ARB in Jordan would also apply to in house attorneys bringing retaliation claims under Dodd-Frank.¹⁶ These regulations, enacted under the SEA, impose special requirements upon attorneys who represent the issuers of securities.¹⁷ Specifically, the regulations require an attorney to follow certain internal reporting procedures before reporting possible misconduct to the SEC.¹⁸ If such an attorney reasonably believes that the required internal reporting would be futile or the company does not respond appropriately to such a report, he or she “may reveal to the [SEC], without the issuer’s consent, confidential information related to the representation to the extent the attorney reasonably believes necessary to prevent the issuer from committing a material violation that is likely to cause substantial injury to the financial interest or property of the issuer or investors;” to prevent the issuer from committing perjury in an SEC investigation or proceeding; or to rectify consequences of a material violation that “caused, or may cause, substantial injury to the financial interest or property of the issuer or investors in the furtherance of which the attorney’s services were used.”¹⁹

These regulations suggest that attorneys who do not pursue the proper internal reporting procedures, except where allowed under the regulations, may have committed professional misconduct that is relevant to any claim of retaliation. In other words, on the one hand, the regulations establish an appropriate procedure, based upon the particular obligations of an attorney to his or her client and client’s shareholders, for attorney whistleblowing. On the other hand, the ARB has read these requirements, in conjunction with whistleblower protections under SOX, as reason to allow in-house attorneys to bring claims of retaliation.²⁰

The False Claims Act

The False Claims Act (FCA) allows private citizens to file civil actions on behalf of the government—called qu tam actions—and provides such individuals a substantial portion of the government’s recovery.²¹ The FCA also affords retaliation protections to whistleblowers.²² There are cases, discussed further below, that address the extent to which in-house attorneys and compliance professionals can act as a relator (a private individual who brings a lawsuit on behalf of the government) and collect a portion of the government’s recovery in an action against the whistleblower’s employer. Courts have not, however, extensively addressed retaliatory discharge cases in this context. In one FCA case brought by an in-house attorney, the trial court dismissed a related state law wrongful discharge claim, finding that state case law and the Virginia Code of Professional Responsibility precluded a wrongful discharge claim of an in-house counsel, because it contravened the client’s absolute right to discharge its attorney.²³ On appeal, the Fourth Circuit affirmed the dismissal on different grounds, declining to reach the question of whether an in-house attorney could brinwrongful discharge claim. ²⁴ In yet another case, the court prohibited an inhouse attorney from acting as qui tam relator, but distinguished cases in which an attorney sues a former client in matters arising out of the counsel’s personal right or interest,²⁵ leaving open the question of whether such an attorney could state a claim of retaliation under the FCA.

Common Law Wrongful Discharge Claims

Retaliation claims brought by in-house attorneys have also arisen, with mixed results, in wrongful discharge or retaliation claims brought under various other state and federal laws. In the context of state common law retaliatory discharge claims, for example, the Illinois Supreme Court barred a claim by in-house counsel, finding that “in-house counsel generally are not entitled to bring a cause of action for retaliatory discharge against their employer/client.”²⁶ In that case, Balla v. Gambro, the court reasoned that the whistleblower protections were intended to encourage employees to come forward and report misconduct.²⁷ Where the employee is also counsel to the company, however, he or she already has an ethical obligation under ABA Model Rule of Professional Conduct 1.6 to disclose information necessary to prevent commission of a crime.²⁸ When it comes to attorneys, the court explained, they do not have a choice about reporting misconduct because they are ethically obligated under the state’s rules of professional conduct to do so.²⁹ According to the court, it is the attorney, not the employer, who should bear the costs of these ethical obligations.³⁰ In other words, the court reasoned, an employer should be free to terminate an attorney after the attorney makes allegations of misconduct, thereby straining the relationship, without being subject to liability in a retaliatory discharge lawsuit.³¹

The court in Balla also reasoned that extending the tort of retaliatory discharge to in-house counsel would have an undesirable chilling effect on attorney-client communications.³² As a result of this potential chilling effect, the court explained, employers would hesitate before seeking advice from their internal attorneys regarding potentially questionable corporate conduct, knowing that the attorney may use the information against them in a subsequent employment suit.³³

The court in Balla also rejected the plaintiff’s assertion that he was acting in a non-legal regulatory compliance role when he reported his employer’s alleged misconduct to the government.³⁴ Instead, the court found that the plaintiff was acting as general counsel throughout the situation at issue; that his role as general counsel was inextricably intertwined with the compliance function and that his conclusions regarding the company’s conduct were legal in nature.³⁵

State and federal courts have not generally followed the Balla decision’s approach of a complete, per se bar of retaliation claims by inhouse counsel. Instead, courts have viewed these cases in relation to the state’s rules of professional conduct, drawing a range of conclusions about what the rules mean for scope and prosecution of an in-house lawyer’s whistleblower claim.

The Ethical Obligations of Attorney-Whistleblowers

Because courts have largely rejected the notion of a per se bar on retaliation claims by in-house attorney whistleblowers, they have had to grapple with the implications of attorneys’ ethical obligations to maintain client confidences and their duties to former clients, determining what limitations those obligations impose on the scope of a claim and how it should be handled during litigation.

Rules Protecting Client Confidences

As the U.S. Supreme Court has explained, the attorney-client privilege is the “oldest of the privileges for confidential communications known to the common law.”³⁶ Its purpose is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”³⁷ Accordingly, all states have adopted ethical rules limiting an attorney’s ability to reveal client confidences.

ABA Model Rule of Professional Conduct 1.6 permits disclosure of client information if the disclosure is necessary “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.” Furthermore, the ABA has issued a formal ethics opinion finding that a wrongful termination claim is a “claim” within the meaning of Model Rule 1.6.³⁸ Courts in states that have adopted the precise language of Model Rule 1.6 have held that, because of this exception, the ethical rule regarding disclosure of confidential information is not violated even if disclosure of client confidences is necessary to bring the whistleblower claim.³⁹ The vast majority of states have adopted this language. ⁴⁰ It is important to note, however, that there is a distinction between the ethical rules and the substantive law regarding use of attorney-client and work-product privileged communications in litigation.⁴¹

A handful of states have adopted more restrictive ethical rules regarding the disclosure of client confidences. For example, the District of Columbia, Michigan, and New York expressly limit use of confidential information to claims involving a fee.⁴² In these states, the ethical rule regarding client confidences is violated if such confidences are disclosed by in-house counsel in the course of litigating a whistleblower claim, unless in-house counsel can show that some other exception applies, such as the crime-fraud exception.⁴³

California has adopted an even stricter rule of professional conduct regarding disclosure of client confidences. In particular, California attorneys are required:

“(1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. [And] (2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”⁴⁴

As a result of this language, the California Supreme Court has held, “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.”⁴⁵

In-house counsel may attempt to rely on the “crime-fraud” exception to the rules governing an attorney’s obligation to maintain client confidences. Under the crime-fraud exception, an attorney is permitted to make disclosures reasonably necessary to prevent an ongoing crime or fraud.⁴⁶ However, where the whistleblower does not have evidence the crime is ongoing, the exception does not apply.⁴⁷ Further, “in no procedural context may the bare, unilateral assertion that the crime-fraud exception applies justify disclosure.”⁴⁸ Instead, “[t]he party seeking disclosure of privileged material under the crime-fraud exception must first apply to the court with a factual basis sufficient to form a good faith belief that the exception would apply.”⁴⁹ Upon such a showing, a court will conduct an in camera review to determine whether the exception actually applies. Even after this determination, the disclosure cannot be made until all avenues of appeal are exhausted.⁵⁰

Finally, under many states’ rules, where in-house counsel becomes aware of a violation of the law that is likely to result in substantial injury to the company, he or she is permitted to reveal confidential information to the extent the lawyer reasonably believes necessary, after he or she has reported violations internally and the organization has failed to act.⁵¹

Duties to Former Clients

In addition to running afoul of the applicable rules regarding client confidentiality, pursuit by in-house counsel of some types of whistleblower claims, such as False Claim Acts suits, may violate the applicable rule of professional responsibility regarding duties to former clients. Many states have adopted rules prohibiting a lawyer who has formerly represented a client in a matter from representing “another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”⁵² In United States ex. rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc.,⁵³ the U.S. District Court for the Southern District of New York dismissed a False Claims Act suit on the basis that the former in-house counsel, as relator, was “representing another person, the United States, in a matter substantially related and materially adverse to his former representation of [his employer] without his client’s consent” and was therefore violating the rules of professional responsibility. However, where the attorney is suing in his or her personal capacity, this restriction does not apply.⁵⁴

Impact of Attorney Ethical Obligations

In light of the ethical rules described above, courts have placed various restrictions on whistleblower claims brought by in-house counsel. Some courts, for example, have allowed in-house attorneys to bring common law or statutory retaliation claims only to the extent that they can do so without breaching attorney-client privilege or revealing a client’s confidential information.⁵⁵ In General Dynamics Corporation v. Superior Court, the California Supreme Court rejected the idea that in-house attorneys’ remedy in cases where they feel compelled to blow the whistle is to withdraw from representation of their employer, calling such an option “illusory” and a “course fraught with the possibility of economic catastrophe and professional banishment.”⁵⁶ The court acknowledged, however, that attorneys have a duty of fidelity to their clients’ interests, which warrants certain limits on their capacity to bring wrongful discharge claims.⁵⁷ Further, the court concluded that, except in the rare instance where disclosure of client confidence is permitted under the Rules of Professional Conduct, attorneys should not be permitted to disclose client confidences.⁵⁸ Accordingly, “where the elements of a wrongful discharge in violation of a fundamental public policy claim cannot . . . be fully established without breaching the attorney client privilege, the suit must be dismissed in the interest of preserving the privilege.”⁵⁹ The court added that trial courts should employ equitable measures designed to allow in-house attorney-plaintiffs to offer the evidence necessary to prove their claims, without violating client confidences.⁶⁰ The measures suggested by the court include: sealing and protective orders; limited admissibility of evidence; restricting the use of testimony in successive proceedings; and in camera proceedings.⁶¹

The Massachusetts Supreme Judicial Court took a similar approach in GTE Products Corporation v. Stewart, limiting wrongful discharge claims by in-house counsel to those cases where: (1) the attorney would have violated ethical norms and duties imposed by statute or the Rules of Professional Conduct by complying with his or her employer’s requests; and (2) the attorney-plaintiff can prove his or her claim without violating attorney obligations regarding client confidences.⁶² A California Court of Appeal took the General Dynamics decision one step further, allowing a former in-house attorney to disclose to her attorney “all facts relative to [her] termination, including employer confidences and privileged information,” even if she could not ultimately submit that privileged information as evidence in support of her claim.⁶³

Other courts have taken an even more expansive approach, allowing claims by in-house counsel even where proving the claim would require disclosure of confidential information.⁶⁴ Courts have been particularly willing to allow both the claim and the disclosure of client confidences where the state had adopted the ABA’s Model Rule 1.6.⁶⁵ For example, in Burkhart v. Semitool, the Montana Supreme Court relied on the state’s Rule 1.6, which mirrors the model ABA rule, in determining that an in-house attorney can bring a retaliatory discharge claim and, moreover, can reveal client confidences, as necessary, to establish the claim.⁶⁶ The court rejected arguments that the rule should be limited to those cases enumerated in the ABA’s comments to the Model Rules, including malpractice claims and fee disputes.⁶⁷ Instead, the court concluded that the ABA intended to make the exception broad and that, under the rule, “a lawyer may reveal confidential attorney client information, to the extent the lawyer reasonably believes necessary, to establish an employment-related claim against an employer who is also a client.”⁶⁸

Footnotes

¹ ^See ^{18 U.S.C. §§ 1513(e), 1514A(a).}

^{2 577 F.3d 989 (9th Cir. 2009).}

³ ^Id^{. at 995.}

⁴ ^Id^{. at 995-96.}

⁵ ^Id^{. at 995.}

^{6 2006-SO X-41 (ARB Sept. 30, 2009).}

⁷ ^Id^{. at **14-15.}

⁸ ^Id^{. at *15.}

⁹ ^Id^{. at *17.}

¹⁰ ^Id^.

^{11 The Dodd-Frank Act amended existing whistleblower protections under SO X and the False Claims Act and ushered in several new types of protection for whistleblowers. For example, section 922 of the Act amended the Securities Exchange Act to add new retaliation protections for whistleblowers and create new monetary incentives for whistleblowers who make qualifying reports of misconduct to the SE C. Section 748 of the Act amended the Commodity Exchange Act (CEA) to adopt similar provisions that both protect and incentivize whistleblowers. Protected activity under the CEA includes reports to the Commodity Futures Trading Commission (CFTC) or participation in investigations by that agency. Section 1057 of the Act prohibits retaliation against employees who report wrongdoing with regard to “consumer financial products or services,” which is broadly defined under the Act.}

^{12 17 C.F.R. § 240.21F-3.}

¹³ ^Id^{. § 240.21F-2(b)(1).}

^{14 15 U.S.C. § 21F(h)(1).}

^{15 17 C.F.R. § 240.21F-2.}

¹⁶ ^{See Jordan v. Spring Nextel Corp.}^{, 2006-SO X-41, at **14-15 (ARB Sept. 30, 2009).}

^{17 17 C.F.R. § 205.3.}

¹⁸ ^Id

¹⁹ ^Id^.

²⁰ ^{Jordan v. Spring Nextel Corp}^{., 2006-SO X-41, at **14-15 (ARB Sept. 30, 2009).}

^{21 31 U.S.C. § 3730(b).}

²² ^Id^{. § 3730(h).}

²³ ^{Under Seal v. Under Seal}^{, 1994 U.S. App. LEXIS 5422, at **3-4 (4th Cir. Mar. 24, 1994).}

²⁴ ^Id^.

²⁵ ^{United States ex. rel. Fair Lab. Practices Assocs. v. Quest Diagnostics Inc}^{., 2011 U.S. Dist. LEXIS 37014, at *29, n.15 (S.D.N.Y. Apr. 5, 2011).}

²⁶ ^{Balla v. Gambro, Inc}^{., 145 Ill. 2d 492, 502 (1991).}

²⁷ ^Id^{. at 504.}

²⁸ ^Id^.

²⁹ ^Id^{. at 501.}

³⁰ ^Id^{. at 504.}

³¹ ^Id^{. at 505}

³² ^Id^{. at 502-04.}

³³ ^Id^.

³⁴ ^Id^{. at 509-10.}

³⁵ ^Id^.

³⁶ ^{Upjohn Co. v. United States}^{, 449 U.S. 383, 389 (1981) (internal citation omitted).}

³⁷ ^Id^.

^{38 ABA Comm. On Ethics and Prof ’l Responsibility, Formal Op. 01-424 (2001).}

³⁹ ^{See Douglas v. DynMcDermott Petroleum}^{, 144 F.3d 364 (5th Cir. 1998);} ^{Kachmar v. SunGard Data Sys., Inc}^{., 109 F.3d 173 (3rd Cir. 1997) (applying virtually identical rule, court rejected argument that Rule 1.6 limited disclosures of confidential information to fee disputes and situations involving attorney’s defense of claim based upon examples in commentary; court rejected employer’s argument that former in-house counsel’s retaliatory discharge claim under Title VII should be dismissed; court noted that district court could enter protective orders, seal files, etc., that would permit plaintiff to “vindicate [her] rights while preserving core values underlying the attorney-client relationship”);} ^{see also Willy v. Administrative Review Bd}^{., 423 F.3d 483, 501 (5th Cir. 2005) (applying} ^Kachmar^{, court held that “no rule or case law imposes a} ^{per se} ^{ban on the offensive use of documents subject to the attorney-client privilege in an in house counsel’s retaliatory discharge claim against his former employer under the federal whistleblower statutes when the action is before an [administrative law judge]”);} ^{Van Asdale v. International Game, Tech}^{., 498 F. Supp. 2d 1321, 1329 (D. Nev. 2007) (citing} ^{Burkhart v. Semitool, Inc}^{., 5 P.3d 1031 (Mont. 2000); holding that in-house counsel could proceed with SO X claim even if it required disclosure of privileged information because of the language of Nevada Rule 1.6, which is identical to the ABA Model Rule, and stating “[m]ultiple courts have found offensive use of privileged information appropriate under such rules”);} ^{Hoffman v. Baltimore Police Dep’t}^{, 379 F. Supp. 2d 778, 782-83 (D. Md. 2005);} ^{Spratley v. State Farm Mut. Auto. Ins. Co}^{., 78 P.3d 603 (Utah 2003).}

^{40 States that have adopted this precise language include: Alabama; Alaska; Arizona; Arkansas; Colorado; Connecticut; Delaware; Florida; Georgia; Hawaii; Idaho; Illinois; Indiana; Iowa; Kansas; Kentucky; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Mississippi; Missouri; Montana; Nebraska; Nevada; New Hampshire; New Jersey; New Mexico; North Carolina; North Dakota; Ohio; Oklahoma; Oregon; Pennsylvania; Rhode Island; South Carolina; South Dakota; Tennessee; Utah; Vermont; Virginia; Washington; West Virginia; Wisconsin; and Wyoming. Texas has adopted similar, but not identical, language.} ^See ^{TEX. DISCIPLINARY RULES OF PRO F’L CONDUCT 1.05.}

⁴¹ ^{See Nesselrotte v. Allegheny Energy, Inc}^{., 2008 U.S. Dist. LEXIS 55730 (W.D. Pa. July 22, 2008).}

⁴² ^See ^{D.C. RULE OF PRO F’L CONDUCT 1.6(e); MICH. RULE OF PRO F’L COND UCT 1.6(c); N.Y. RULE OF PRO F’L CONDUCT 1.6(b).}

⁴³ ^See^, ^e.g^., ^{Wise v. Consolidated Edison Co}^{., 723 N.Y.S.2d 462 (N.Y. App. Div.),} ^{app. denied}^{, 756 N.E.2d 78 (N.Y. 2001).}

^{44 CAL. BUS. & PRO F. CODE § 6068(E).}

⁴⁵ ^{General Dynamics v. Superior Court}^{, 7 Cal. 4th 1164, 1170 (1994).}

⁴⁶ ^See^, ^e.g^{., ABA MODE L RULES OF PRO F’L CONDUCT R. 1.6.}

⁴⁷ ^{See United States ex. rel. Fair Lab. Practices Assocs. v. Quest Diagnostics Inc}^{., 2011 U.S. Dist. LEXIS 37014, at **35-36 (S.D.N.Y. Apr. 5, 2011) (rejecting the plaintiff’s argument that his disclosure was permissible under the so-called “crime fraud” exception to rules preventing disclosure of privileged information and finding the crime-fraud exception to an attorney’s obligation to maintain client confidences to be limited to occasions in which the disclosure is necessary to prevent a client from committing a future crime or engaging in an ongoing criminal scheme.).}

⁴⁸ ^{Prudential Ins. Co. v. Massaro}^{, 2000 U.S. Dist. LEXIS 11985 (D.N.J. Aug. 14, 2000).}

⁴⁹ ^Id^{. at *29.}

⁵⁰ ^Id^{. at *30 (holding that former in-house counsel who in reliance on the crime-fraud exception disclosed privileged communications to attorneys adverse to the company, in an affidavit in open court, and in sworn statements to authorities investigating the company, acted in flagrant violation of his duties as an attorney because he deprived the company its “absolute right to be heard before a court of law in defense of its privilege” prior to the disclosure).}

⁵¹ ^See^, ^e.g.^{, ABA MODE L RULE OF PRO F’L CONDUCT R. 1.13.}

⁵² ^See^, ^e.g^{., ABA MODE L RULE OF PRO F’L CONDUCT 1.9(a).}

^{53 2011 U.S. Dist. LEXIS 37014 (S.D.N.Y. Apr. 5, 2011).}

⁵⁴ ^{Coppola v. Proulx}^{, 2012 U.S. Dist. LEXIS 104792 (D. Nev. July 26, 2012) (holding that California’s ethical prohibition regarding the subsequent representation of another against a former client did not apply to former in-house counsel’s suit for violation of the Dodd Frank Act’s whistleblower protections because former in-house counsel was “suing only in his personal capacity for alleged injuries he personally suffered”).}

⁵⁵ ^See^, ^e.g^., ^{GTE Prods. Corp. v. Stewart}^{, 421 Mass. 22, 29-32 (1995);} ^{General Dynamics Corp. v. Superior Court}^{, 7 Cal. 4th 1164, 1186-92 (1994).}

⁵⁶ ^{General Dynamics Corp}^{., 7 Cal. 4th at 1188.}

⁵⁷ ^Id^{. at 1189.}

⁵⁸ ^Id^{. at 1190.}

⁵⁹ ^Id^.

⁶⁰ ^Id^{. at 1191.}

⁶¹ ^Id^.

^{62 421 Mass 22, 30 (1995).}

⁶³ ^{Fox Searchlight Pictures, Inc. v. Pladino}^{, 106 Cal. Rptr. 2d 906 (Cal. Ct. App. 2001).}

⁶⁴ ^See^, ^e.g^., ^{Willy v. Administrative Review Bd}^{., 423 F.3d 483, 500-01 (5th Cir. 2005);} ^{Kachmar v. SunGard Data Sys., Inc}^{., 109 F.3d 173, 181-82 (3d Cir. 1997);} ^{Parker v. M & T Chemicals, Inc}^{., 566 A.2d 215, 219-22 (N.J. Super. Ct. App. Div. 1989) (declining to determine what scope of confidential information may be allowed, but noting that the crime-fraud exception to the attorney-client privilege should be interpreted broadly).}

⁶⁵ ^See^, ^e.g^., ^{Heckman v. Zurich Holding Co. of Am}^{., 242 F.R.D. 606, 609-11 (D. Kan. 2007);} ^{Hoffman v. Baltimore Police Dep’t}^{, 379 F. Supp. 2d 778, 782-83 (D. Md. 2005);} ^{Spratley v. State Farm Mut. Auto. Ins. Co}^{., 78 P.3d 603 (Utah 2003).}

^{66 5 P.3d 1031, 1040 (Mont. 2000).}

⁶⁷ ^Id^{. at 1040-41.}

⁶⁸ ^Id^{. at 1041.}

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