I think that if the company was firing him, the company can’t rely on him to “represent” their interests in his own termination — he’s suddenly in an adversarial position with his former client. But even in that context, an in-house counsel’s duties are tricky — I once represented an in-house lawyer suing her old company for discriminatory termination, and at the very least the duties of confidentiality to a former client mean that the lawyer probably couldn’t use certain information that she came to know solely because she was their lawyer….

But if instead he was being fired and therefore was in an adversarial position with the company, then at first glance I don’t see a problem.

Companies “sneak in” slanted provisions all the time. Take the standard 200-page employee handbook that has all kinds of assurances and promises for employees’ benefit — but also a disclaimer on the bottom of page 187 saying “all employees are at-will and have no enforceable contract rights arising out of this handbook.” This sort of disclaimer means that employees can’t even enforce employer promises not to retaliate against whistleblowers (at least in NY and WI, the two states whose common law on this point I know well enough offhand), as long as the employer buried an “I had my fingers crossed” disclaimer somewhere, anywhere, in the handbook. Employers also include ungodly complicated restrictive covenants, mandatory arbitration provisions, and otehr provisions that seriously restrict workers’ rights upon termination of employment.

Employers do this, moreover, even with workers who clearly aren’t educated enough to reliably understand such provisions (e.g., blue-collar workers, or low-paid office personnel with limited education). The law doesn’t cut any slack for the janitor or copy room worker who didn’t catch the provision on page 176 of his handbook; I’m not crying a river for the HR director here who didn’t look at the contract that was returned to him.

In short, when you hear about an employer-employee dispute in which one side “snuck” a highly significant contract provision into a document, and the other didn’t read/notice it… well, 99.9% of the time, it’s the employee getting hosed, not the other way around. That’s why all the employment law cases saying “the ‘contract’ binds even if one party never read it” are employer victories. Employers and their lawyers have worked very hard for many many moons to make sure the law enforces as contracts virtually any employment documents that the parties exchange. So now we’re supposed to be outraged that there’s one measly case where an employer gets bitten in the butt by this case law, this practice of slipping in a contract proivision that the other side didn’t expect? Screw ’em; these are the chickens coming home to roost.