Alaska Employment Law

Judge Cormac Carney’s opinion in the Broadcom options criminal prosecution, which has received much publicity lately, bears on employment law in several ways.   U. S. v. Nichols, ___ F.Supp. ____, 2009 WL 890633 (C.D.Cal. 1999).

First, it’s a useful review of the differences between the Upjohn warning (where the corporate attorney tells a corporate officer that she or he represents the company, not the officer, and might release the officer’s statements to others), and the dilemma of simultaneously representing both the corporation and a corporate officer (pretty tricky).  

But, second, in the course of his opinion, Judge Carney relies on an California Court of Appeals opinion holding that an employment attorney breached the duty of loyalty, after settling a discrimination claim under a confidentiality agreement, by representing a second client with the same employer and calling the first client as a witness about the climate of discrimination.  The attorney’s duty to the second client to conduct a vigorous examination of the former client almost certainly risked breaching the confidentiality provision of the settlement agreement.  Because the attorney failed to obtain consent from the first client to represent the second client (after disclosing the risk of breaching the settlement agreement), the trial court granted the employer’s motion to disqualify the employee’s attorney.  The appellate court affirmed.  That case is Gilbert v. Nat. Corp. for Housing Partnerships, 71 Cal.App.4th 1240 (Cal.Ct.App. 1999).