Remember the classic scene in the movie Fight Club? Brad Pitt, founder of the “Club,” is talking to prospective pugilists about its rules. He boldly declares the First Rule of Fight Club: “you do not talk about Fight Club.” He then gives the Second Rule: “you DO NOT talk about Fight Club.” Needless to say, everyone got the point – keep your mouth shut to avoid trouble.
In homage to Fight Club’s simple genius, I offer a modified version of this Rule for Human Resource Managers:
YOU DO NOT TALK ABOUT YOUR LAWYER.
You see, part of my job as a management side employment lawyer is preventative in nature: I consult with companies before they make a termination decision. I do so in order to help them (hopefully) avoid lawsuits, and to put them in the best position to defeat any litigation that ensues. Among other things, the client and I discuss the rationale(s) for the termination decision, the performance history of the employee, the existence (or lack thereof) of supporting documentation, whether the company is following its own disciplinary policies and/or practices, and the legal risks involved if the employee falls into a “protected” classification under discrimination laws.
These attorney-client discussions are treated under the law as “confidential” – they are protected from involuntary disclosure by the “attorney-client privilege.” I cannot ethically disclose them. Likewise, the company representative I am talking with cannot generally be forced to reveal them at deposition, in an interrogatory answer, or at trial. This protection is critical, as it allows the client and I to engage in candid discussions of sensitive issues, without the fear of later disclosure.
Unfortunately, HR managers often violate my modified Rule. They say things like “we checked with our lawyer and he told us ….,” or “we will talk with our lawyer and get back to you” in termination or disciplinary meetings with employees, or when discussing “reasonable accommodations” with them. To a degree it is understandable, as part of the normal “give and take” of a conversation with an employee.
Moreover, on their face such remarks seem harmless. But in reality, they are subtly dangerous. Why? First and foremost, the client may have just waived the attorney-client privilege. Remember, the privilege is for the client’s benefit. But it can also be waived by the client. Any statement that references the content of a client’s prior conversation with their lawyer will likely be construed (or at least argued) as a “waiver” of the privilege.
If waived, the employee’s lawyer could ask the client probing questions about the details of that conversation, including all statements made before the decision to discipline, discharge or not accommodate. This could result in the disclosure of comments that, even if not acted upon by the client, will be presented as evidence of a discriminatory or retaliatory intent, and/or at least an awareness of the potential for litigation. Such statements will be trumpeted as “smoking guns” for the company’s “real” motivation behind its decision.
Second, such comments often “raise a flag” in an employee’s mind. The employee thinks his situation has become “serious” – for goodness sake, the company just told him/her that its lawyer has become involved! With this knowledge, the employee usually does one of a couple of things: (a) he becomes very sensitive and files a “retaliation” claim for any adverse employment action taken against him, believing it was caused by his raising of a “legal” issue; or (b) goes out an immediately retains his own lawyer to advocate on his behalf; or (c) both.
None of these outcomes are positive for the company. So apply the First Rule of HR:
YOU DO NOT TALK ABOUT YOUR LAWYER© MICHAEL BEST & FRIEDRICH LLP