A Small Victory For Workers In New York... Is It A Precedent?

At-Will Doctrine Is Not Applied to Associate's Suit Against Firm: Lawyer Claims He Was Fired For Rejecting Unethical Conduct

A New York judge has set a precedent that knocks a hole in the employment at-will doctrine that may just place a chilling effect upon employers that visit retaliatory actions on whistle blowers and those that report unethical conduct... at least in New York. I think the principle needs to be set in federal precedent at the highest level. In addition, more training of the general public on the use of the qui tam doctrine of law needs to be applied not only to federal situations, but state and local situations as well.

A Manhattan judge has ruled that the employee-at-will doctrine, which permits employees to be fired for any reason, does not apply to law firm associates who are terminated for refusing to go along with unethical conduct.

Gerard A. Connolly, a former associate at the high-profile Manhattan personal injury firm formerly known as Napoli, Kaiser & Bern, sued the firm and its name partners last year, alleging he was asked by partner Gerald Kaiser to sign an affidavit stating that a client's wife had signed a release waiving her claims to an $850,000 settlement.

According to his complaint, Connolly did not know if the wife had signed such a release and refused to sign the affidavit. He claimed he was wrongfully fired for his "refusal to allow himself to be drawn into the cover-up of defendants' wrongful acts." He is asking for $15 million in damages.

In largely denying the firm's motion to dismiss Connolly's claims, Supreme Court Justice Rolando T. Acosta extended the Court of Appeal's 1992 decision in Wieder v. Skala, 80 N.Y.2d 628, which held that an associate fired for insisting his firm report another associate's misconduct, as required under state Disciplinary Rule 1-103, could sue the firm for breach of an implied contract of good faith.

Acosta wrote in Connolly v. Napoli, Kaiser & Bern, 105224/05, that it was "illogical" to confine Wieder to cases involving DR 1-103 and not apply it as well to those involving DR 1-102, the rule that sets out what constitutes attorney misconduct.

"[A]ccording to defendants, an implied-in-law obligation exists where an associate insists that his partners report misconduct as defined in DR 1-102 to the Appellate Division Disciplinary Committee pursuant to DR 1-103, but would not be protected for refusing to engage in DR 1-102 misconduct in the first place," the judge wrote.

"The Court [of Appeals] clearly could not have intended such a result," he said.

In support, Acosta cited the Eastern District of New York federal court ruling in Kelly v. Hunton & Williams, 1999 WL 408416, in which the judge applied Wieder, finding that a firm's action in firing an associate who raised allegations of misconduct was "inherently coercive and necessarily implies an effort to impede post-termination reporting to the Disciplinary Committee."

Connolly, who claims the firm owes him unpaid compensation, also had asked for a firm accounting. But the judge denied the request on the grounds that Connolly was not a partner and therefore not entitled to an accounting.

Steven Krane of Proskauer Rose, the lawyer for Napoli Kaiser partner Marc Bern, said Acosta's decision was an "unwarranted expansion" of the Court of Appeals' previous decision, which could potentially open the floodgates to frivolous suits in which dismissed associates accused their firms of misconduct.

"Courts have interpreted Wieder very narrowly to avoid precisely this kind of lawsuit," said Krane.