Cheryl Foy and Ken Fredeen on navigating ethical dilemmas in-house
THIS ADVICE column is intended to support you as you tackle ethical and professional issues. Submit your questions anonymously here.
QUESTION: I work in a unique employment law environment where practitioners may not have the level of employment law expertise of someone who does only employment law. I have had to deal with local external counsel hired by employees, in the context of disability claims or termination claims. In at least two examples, the external counsel have failed to understand the unique context and have provided advice to their clients on the basis of the wrong law. I feel badly about that, but don’t think I have an obligation to the employee. What are your thoughts on my ethical or professional obligations?
FREDEEN: I spent a lot of time in the trenches on employment related law over my 30-plus-year career in-house, which is likely unique to the general counsel role (I loved it!), so my advice will be practical.
Employment/disability cases are unique. They are complicated, emotional, and always differentiated by the facts and personal circumstances. My starting point is that we are dealing with an employee, not a former employee. In the case of disability, we want them to get well and be their productive selves. Their health and wellbeing are our first priority.
From that starting point, while we acknowledge the anger an employee might have from being terminated, we want the best for them as they get on with their lives. Getting caught up in (often fruitless) litigation for years is neither healthy nor helpful, even if you are ultimately successful. The quicker that a claim can be resolved, the cheaper and easier it will be for everyone.
To your point, where the employee is poorly represented, you are better off doing what you can to help bring matters to a quick resolution, and that means providing relevant information to the opposing party. While you are prevented from communicating with your former employee, you can take some steps to educate counsel.
The particular circumstances you refer to are important and need to be communicated at two points in time: at the exit interview with an explanation to the employee, and then to the lawyer if one is retained. Predictably, the first shot across the bow comes from a lawyer representing the employee. Efforts at resolution need to happen before bills started piling up, making the employee anxious, angry, and less willing to settle.
The same holds true for disability claims. I can’t recall one termination or disability case I dealt with where there was not a surprise of some sort, which was helpful to know early and address to bring a file to resolution. Remember, the sooner the employee can get back to work, the happier and more productive they are. The sooner a terminated employee can find another job, the better for everyone.
FOY: I agree with Ken’s point that this question is not just one of a lawyer’s professional responsibility. It’s a question of culture, values and reputation. Interactions with employees leaving the organization, or in conflict with the organization, should be conducted consistently with the organization’s values. I always remind my clients that the employees who stay watch closely how those who leave are treated, and our values apply to all interactions.
To answer this question from a professional responsibility perspective, I re-read the Law Society of Ontario’s Rules of Professional Conduct, and I encourage you to look at your rules regularly. I had two considerations in mind: 1) your obligation to the employee, and 2) your obligation to your fellow counsel. Chapter seven deals with our responsibility to lawyers and others, and encourages us to avoid sharp practice: i.e. we are to avoid taking advantage of the mistakes of fellow lawyers. It calls upon us to act in “good faith” with all those with whom we have dealings in the course of our practice.
Although chapter seven explicitly carves out mistakes going to the merits of the case, I’d say that there are many situations where steering the lawyer in the right direction is the right thing. In many cases, and with creativity, this can be done without disservice to your own client. The results are fairer outcomes for the employees, reduced reputational risk, better lawyers in your community, and better relationships.