A Cause Worth Quitting for? The Conflict between Professional Ethics and Individual Rights in Discriminatory Treatment of Corporate Counsel

Abstract

This article addresses the conflict that arises between the Model Rules of Professional Conduct and Title VII of the 1965 Civil Rights Act when an in-house attorney is subjected to discrimination by a corporate employer. Under Title VII, an in-house lawyer who experiences discrimination may, in his or her capacity as an employee, pursue a discrimination claim against the client-employer and is entitled to the protection of the statute's anti-retaliation provision once he or she engages in protected conduct. On the other hand, as a member of the bar, an in-house attorney must abide by his or her professional obligations to the client-employer and is arguably prohibited under conflict of interest and confidentiality rules from taking action that will be contrary to the client's interests while the in-house attorney holds the position of a client fiduciary.

The article examines the source and purpose of the governing ethical principles as well as the nature of the corporate counsel-corporate employer relationship. It identifies the link between the common interpretation of an attorney's loyalty obligations and the traditional image of the attorney-client relationship in which the attorney wields substantial bargaining power over a vulnerable client. The article suggests that this image and the rules that flow from it are ill-suited to the realities of modern legal practice and fail to account for the in-house attorney's legitimate need for job protection in a situation where he or she acts and is treated as much as an employee as an attorney. Taking into account the increased job duties generally associated with in-house verses outside counsel positions, the article advocates for an alternative allocation of responsibilities between lawyer and client under which the corporate employer's use and retention of in-house counsel create a concomitant obligation on the part of the client to maintain and protect the attorney's ability to perform in the workplace. The article concludes that the Model Rules of Professional Conduct and Title VII's anti-retaliation provision should be interpreted to permit in-house attorneys to challenge discriminatory behavior from within the employment relationship and at the same time proposes limitations that will partly accommodate the client's interest in retaining the counsel of its choice.

JEL Classification: K31