Lawyer’s Wrongful Termination Suit Survives Under Narrow Public Policy Exception to “At Will” Employment Rule

In Connolly v. Napoli Kaiser Bern LLP, 2012 NY Slip Op 50075(U) (NY Sup Ct. NY Cty. 105224/05) (J. Madden), the court held that plaintiff (an attorney) presented sufficient evidence – pursuant to the narrow public policy exception to the “at-will” employment rule established by the Court of Appeals in Wieder v. Skala, 80 NY2d 628 (1992) – of breach of an implied contract.

The court explained:

Plaintiff’s first cause of action for breach of an implied-in-law obligation is based upon the case of Wieder v Skala[], which created a narrow exception to the at-will doctrine where an employer law firm requires an attorney employed by it to act unethically and in violation of professional rules in order to avoid termination. Plaintiff alleges that his discharge was wrongful and intended as retaliation for his refusal to sign an affirmation falsely stating that Ms. Vasquez had duly executed the release in connection with the Vasquez Action, and that she had agreed to waive her claims. Plaintiff further alleges that defendants breached an implied-in-law obligation owed to him when he was terminated for refusing to engage in misconduct in violation of 22 NYCRR § 1200.3 (DR 1-102). DR 1-102 prohibits an attorney from, inter alia, engaging in “illegal conduct that adversely reflects on a lawyer’s honesty, trustworthiness or fitness as a lawyer” or “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Under New York law, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party. Where employment is at will, an employee may be terminated at any time, for any reason, or for no reason at all.

Plaintiff was an at-will employee of NKB. Thus, [] NKB could have terminated plaintiff’s employment at any time, for any reasons, or for no reason at all. Accordingly, the only basis for plaintiff’s claim is whether or not he was terminated under the Weider v Skala exception.

In Wieder v Skala[], the Court of Appeals recognized a cause of action for breach of an implied contract where an associate in a law firm, hired as an at-will employee, was terminated for his insistence that the firm comply with DR 1-103(a), which imposes an obligation on an attorney to report another attorney’s misconduct, as defined in DR 1-102, to the Appellate Division of the Supreme Court.

Judge Madden concluded that plaintiff raised triable issues of fact as to whether he was terminated because he failed to sign a false affirmation, rather than (as alleged by defendants) because of his poor performance and mishandling of a case.

The court noted, inter alia, that “the timing of his termination suggests that plaintiff was fired not due to his alleged mishandling of the Vasquez Action, but as a result of his refusal in March 2002, to falsely attest that Ms. Vasquez’s signatures were genuine” and that “a reasonable fact finder could conclude that plaintiff was fired for his refusal to sign the false affirmation based on Mr. Vasquez’s testimony that Kaiser engineered a forgery; the presence of Kaiser’s secretary’s notary stamp on the forged documents; Kaiser’s admission that he witnessed Mr. Vasquez sign Ms. Vasquez’s signature on the back of the settlement check; and the fact that plaintiff was fired on the same day that Ms. Vasquez’s application was returnable.”

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