Friday, December 6, 2013

Rules of Professional Conduct and Employment-at-Will

Sixth Circuit Court of Appeals Hold That Requirement That Attorney Violate Ethical Rules Does Not Constitute an Exception to the Rule of At-Will Employment

      A recent decision out of the Sixth Circuit Court of Appeals held, inter alia, that an assertion by an attorney that he was fired for his refusal to violate what he understands to be his ethical obligations under the Kentucky Rules of Professional Conduct will not constitute an exception to Kentucky’s rule of employment-at-will.  Gadlage v. Winters & Yonker, Attorneys at Law, PSC, ___ Fed. Appx. ___, 2013 WL 5749547 (6th Cir. Oct. 24, 2013).
      Anthony Gadlage, an attorney, was dismissed from his employment by the Winters & Yonkers firm (W&Y) alleging due to his refusal to refer clients to the “Ask Gary” medical service providers.  In his wrongful discharge suit, he asserted that the rules applicable to Kentucky attorneys fall within the scope of the “public policy” exception to Kentucky’s general applicable rule of employment-at-will.  Gadlage also asked the Federal District Court to certify to the Kentucky Supreme Court the question of whether “a violation of the Kentucky Supreme Court Rules can form the basis of a wrongful discharge claim as a ‘public policy’ exemption to the employment-at-will doctrine.”  
      The trial court upheld W&Y’s motion to dismiss for failure to state a claim on which relief can be granted.  On a motion for reconsideration, the District Court refused to certify the question believing it had already been sufficiently addressed by the Kentucky Supreme Court. 
      Curiously, while the Sixth Circuit acknowledged that Greissman v. Rawlings & Associates, No. 12-CI-00744 (Oldham Cr. Ct. Apr. 8, 2013) and Isaacs & Isaacs, PSC v. Rigor, No. 05-CI-7688 (Jefferson Cir. Ct. Oct. 18, 2010) both held, inter alia, that the Rules of Professional Conduct may support a public policy exception to the rule of at-will employment, the Court of Appeals retreated from the question, upholding the dismissal on what is effectively an insufficient pleading standard, namely:
Even if obligatory Supreme Court Rules can ground a public-policy exception to the at-will doctrine, Gadlage does not allege a singular particularized Rule violation in his complaint or in his appellate briefing.  He relies instead on vague and generalized statements about third-party conflicts of interests and obligations to clients.  Gadlage has thus failed to state a claim that is “plausible on its face.”
      A dissenting opinion by Judge White would have referred to the Kentucky Supreme Court the question Gadlage sought to be certified and she would also have found that the pleadings were sufficient to avoid dismissal.

      With due respect to the majority, I found this decision to be quite unsatisfactory.  The Kentucky Supreme Court alone has the final voice on the interpretation and application of the Rules of Professional Conduct.  The Sixth Circuit’s affirmance of the trial court’s refusal to certify the question, not wanting to “trouble” the Kentucky Supreme Court, is without justification.  In fact, not “troubling” the Supreme Court with this question has created uncertainty as this decision and those in the Greissman and Isaac cases are in conflict; a certification would have provided a clear opportunity for its resolution.

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