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Fischman v. MCHA: Privilege and Confidentiality Regarding In-House Counsel

Attorney-Client Privilege conceptPrivilege and Confidentiality in the Attorney Client Relationship
 Regarding In-House Counsel and Their Employer
Fischman v. Mitsubishi Chemical Holdings America, Inc.(18-cv-08188)
{3 minutes to read}  Attorney client privilege is an integral part of our legal system.  As most situations that require legal intervention are emotional and stressful, reliance on an experienced professional who will commit to your needs while keeping your information confidential has allowed millions of people to have a voice and retain their rights.
But what happens if you are an attorney, your client is your employer and they violate labor laws? In September 2018, our client, Jennifer Fischman, General Counsel for Mitsubishi Chemical Holdings America (MCHA), filed a complaint against the company alleging violations of Title VII, the Equal Pay Act, NYS Human Rights Law and the NYC Administrative Code.  She alleges that MCHA discriminated against her on the basis of sex by failing to promote her and paying her less than her male counterparts (unequal pay). She also alleges MCHA retaliated against her after she engaged in protected activity.
The Defendants moved to dismiss the complaint, arguing that many of her allegations in the complaint are based on confidential information she obtained as an attorney for Defendants and was therefore protected by the attorney-client privilege. This highlights a key and somewhat unusual question: How can we protect in-house counsel from illegal employment practices?
This summer, a Southern District of New York judge denied the Defendants’ Motion to Dismiss allowing the case to move forward. MCHA argued that the complaint must be dismissed because (1) the information pled is subject to the attorney-client privilege and (2) without it, Plaintiff does not adequately state a claim. They also argued the pleadings themselves should be confidential in that they contained attorney-client privileged information.
Judge Furman held that Defendants’ argument failed for three reasons and with respect to confidentiality of the pleadings, held that “narratives of events, rather than communications,” does not fall under the privilege.  The Judge pointed out that pursuant to NYS Professional Rules, the attorney-client communications protected relate to the obtaining and providing of legal advice. In addition, “disclosures of events do not necessarily reveal confidential communications.”  For example, he holds that communications with co-workers about sexism in the company does not constitute confidential client information subject to the attorney-client privilege. By that notion, all communications held by an in-house attorney with any employee would be privileged.
Thus, while the case is still in its litigation infancy, Plaintiff has already overcome a substantial legal obstacle and confirmed that the employment laws also do indeed protect attorneys.
James A. Vagnini
email: [email protected]

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