Category Archives: Wrongful Discharge

Wrongful Discharge of Lawyers in Washington: Revisiting Weiss v. Lonnquist, 173 Wn. App. 344 (2013)

Two years ago, a lawyer named Weiss was denied relief against her employer Lonnquist, whom Weiss alleged had discharged her for trying to comply with the Rules of Professional Conduct. Weiss v. Lonnquist, 173 Wash. App. 344; 293 P.3d 1264, review denied, 178 Wn. 2d 1025; 312 P.3d 652 (2013).   Weiss believed that her employer was assisting a client in perpetrating a fraud on the court and complained to her employer about this. Weiss refused to work further on the case, but did not lodge a complaint with the disciplinary authorities.   Lonnquist relieved Weiss of the assignment and two weeks later, gave Weiss a 30 day notice of termination.   In a trial presided over then trial judge Stephen Gonzales, Weiss won a substantial verdict against Lonnquist:

The jury found for Weiss on her claim of wrongful discharge and her wage claims. The court entered judgment for damages totaling $36,465.26. Of this total, $16,250.00 was for emotional distress caused by the wrongful discharge. The remainder was for wages lost as a result of the wrongful discharge and wages willfully withheld, doubled by the court under RCW 49.52.070. The court awarded Weiss attorney fees of $128,386.00. Liability for damages and attorney fees was imposed both upon Lonnquist in her personal capacity and upon her law firm.

173 Wash. App. At 351; 293 P.3d at 1268.

But the court of appeals reversed, concluding that the trial court should have granted summary judgment for Lonnquist.   Relying heavily on a case handed down by the state supreme court while the Weiss case was pending — Cudney v. ALSCO, Inc., 172 Wash.2d 524, 259 P.3d 244 (2011) — the appeals court concluded that “[t]he bar disciplinary process is an adequate means of promoting the public policy rooted in the rules of professional conduct.”   Id. at 357.

When Weiss refused to engage in the conduct she perceived as unethical, the public policy she was promoting was the policy demanding candor to the tribunal as set forth in the Rules of Professional Conduct. And she concedes that the disciplinary rules of the bar “may offer an adequate alternative means of protecting that public policy because the Washington State Bar Association has the authority and the ability to sanction an attorney who is found to be in violation of the rule.” This concession is appropriate and significant because it is ultimately dispositive.

173 Wn.App. at 357-8; 293 P.3d at 1271. The court reasoned that Weiss was permitted to disclose this confidence without the client’s consent to prevent the client from committing a crime (RPC 1.6(b)(2)) and/or to prevent the client from committing a crime or fraud reasonably certain to result in substantial financial injury in connection with which Weiss’ services had been sued (RPC 1.6(b)(3)). And she should have done that before suing her employer.

Weiss objected that the disciplinary process was inadequate to provide relief to her, but the court believed that this was not essential to an evaluation of whether the tort of wrongful discharge should be available:

It is true that the bar association provides no comparable remedy offering personal relief and protection from retaliation for an attorney who refuses her supervisor’s directive to engage in conduct she perceives as unethical. But we do not read Cudney as holding that alternative remedies, to be adequate, must provide relief personal to the employee.

173 Wn.App. at 359; 293 P.3d. at 1271-72.

The appeals court’s contention that “[t]he bar disciplinary process is an adequate means of promoting the public policy rooted in the rules of professional conduct,”   supra, is striking. Commentators on the “law of lawyering” have long noted that there is a collage of ways in which the policies underlying the rules of professional conduct get enforced: disciplinary actions, malpractice actions, fee disputes, disqualification motions, procedural sanctions, criminal prosecutions, and judicial contempt actions.   Some would argue that even after all these enforcement mechanisms are taken into account, they are not adequate to enforce the policies.   (Isn’t this essentially the fulcrum of all those lawyer jokes?) Few would argue that the disciplinary process, alone, has ever been adequate to enforce those policies. But at the heart of the Weiss case was a reading of our state supreme court’s “wrongful discharge” jurisprudence.

That basis of Weiss must now be reexamined in light of a trilogy of case issued by the supreme court in September of 2015. Rose v. Anderson Hay & Grain Co., 2015 WL 5455681 (Wash. 2015); Rickman v. Premera Blue Cross, 2015 WL 5455799 (Wash. 2015); Becker v. Cmty. Health Sys., Inc., 2015 WL 5455679 (2015).   In those cases, the court revisited its wrongful discharge jurisprudence and concluded that two conflicting lines of authority had developed which required resolution.   One line of authority had developed which required a wrongful discharge plaintiff to prove –as the court of appeals held Weiss was required to do– that there was no other adequate remedy to promote the public policy at issue. This was the so-called “strict adequacy” requirement. The other line of authority required the plaintiff only to prove that alternative remedies were not exclusive. This is the “exclusivity” requirement. In this new trilogy of cases, the court has now abandoned that “strict adequacy” requirement and reinstated the “exclusivity” requirement. As the court stated in Rose:

[W]e conclude that the additional “adequacy of alternative statutory remedies” component of the jeopardy prong is incorrect and harmful. We disavow the requirement that a plaintiff establish inadequacy of alternative remedies and overrule our cases to the extent they hold otherwise.

Rose v. Anderson Hay & Grain Co., 2015 WL 5455681, at *6 (Wash. 2015). In explaining its rejection of the “strict adequacy” requirement, the court noted that earlier cases — cases which it reaffirmed in Rose — had specified two alternative ways in which a plaintiff might establish the “jeopardy” prong of the wrongful discharge tort: “We said the plaintiff establishes jeopardy by demonstrating that his or her conduct was either directly related to the public policy or necessary for effective enforcement. …. In the first type of case, where there is a direct relationship between the employee’s conduct and the public policy, the employer’s discharge of the employee for engaging in that conduct inherently implicates the public policy.”   But the “strict adequacy” requirement renders the first alternative “superfluous.”

Where does that leave the wrongful discharge tort?

Though we reject this adequacy requirement, courts still must consider whether a statutory remedy is intended to be exclusive. A review of exclusivity is a more consistent, clearer, and legislatively deferential standard. It is more consistent with our analysis of all other wrongful discharge torts, all of which embrace the same exclusivity analysis and better reflects the role of the common law in supplementing statutory principles….Our courts are familiar with analyzing statutes for preemptory and mandatory language, and our well-established jurisprudence would guide the application of this tort toward more consistent, predictable results. And finally, the exclusivity requirement respects the legislature’s choice to either preclude or supplement the common law remedies as it deems necessary. Congress and the legislature know how to create exclusive remedies, and as the popularly responsive branch of government, they are in the best position to determine when such remedies should be restricted in favor of employers.

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For these reasons, we abrogate our precedent only to the extent that it has required an adequacy, rather than an exclusivity, analysis of alternative remedies. We reaffirm the approach we established in Thompson and Gardner as the appropriate analytical framework for the tort. Wilmot applies the proper exclusivity analysis when alternative remedial statutes address the same public policy. Because our cases since Thompson, Gardner, and Wilmot have embraced the same core principles, and in large part remain good law, we abrogate them only to the extent they require an analysis of the adequacy of alternative remedies.

Rose, 2015 WL 5455681, at *8-9.   Among the cases whose “strict adequacy” doctrine was “abrogated” by Rose and its companion cases were Cudney and Korslund, on which the Weiss court had relied.

Would application of the “exclusivity” requirement of prior cases have changed the result in Weiss? Quite possibly. The Rules of Professional Conduct do not suggest that disciplinary actions are intended to be the exclusive means for enforcing the policies underlying them.   The “Scope” section of the RPCs states this:

[15] The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law.

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[20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.

The particular public policy at issue in the Weiss case was maintaining the integrity of the judicial system: Weiss was concerned that her supervisor and the client were perpetrating a fraud on the court.   It is quite clear that there are other remedies than the disciplinary system to enforce that policy: perjury is a crime, and is prosecuted as such. Given that the disciplinary enforcement is not an exclusive remedy for furthering the policy goals, it seems unlikely that the Weiss case would have been dismissed on summary judgment under the Rose approach to the jeopardy element for wrongful discharge.

There were other aspects of the Weiss case that might have also created difficulties.   One allegation by Lonnquist was that Weiss’ refusal to work on the client matter was ill informed and her conclusion that the client and Lonnquist were misleading the court was premature. Perhaps it was, although that does not seem to have been the conclusion of the jury that heard the case. One of the other cases decided along with Rose is suggestive on this point.   In Rickman v. Premera Blue Cross, 2015 WL 5455799 (Wash. 2015), one of the arguments made was that the employee’s belief that her employer was engaged in a plan that would constitute a HIPAA violation was not reasonable.   In response, the court noted that “[w]e have never adopted as an element of the four-part Perritt test, or of wrongful discharge generally, a requirement that the plaintiff confirm the validity of his or her concerns before taking action.”  Id. at *6.  That proposition might apply equally to the Weiss case.

But it is pointless to relitigate the Weiss case.   The point is that this new trilogy of wrongful discharge cases suggests that a wrongful discharge case brought by a lawyer for discharge after trying to comply with the RPCs has much better prospects than it did under the prior precedent.