Save the Squeal: Whistleblowing Associates Need to Be Protected from Retaliation for Following the Model Rules

Photo by Kate Ter Haar on Flickr

Rachel Ford, Associate Member, University of Cincinnati Law Review

I. Introduction

No matter how it happens, losing a job is an embarrassing, humiliating, and demoralizing process. Then, picture getting fired in retaliation to doing the right or ethical thing. Now, along with the previous emotions, the process would be infuriating and disheartening. Add on a mortgage and student loan payments and the process becomes, if it was not already, stressful and worrisome. Because the employee “did the right thing,” there should be redress against her employer, right?

Unfortunately, not for associate attorneys in some jurisdictions.[1] However, some jurisdictions permit redress to retaliated-against associates upon reporting misconduct.[2] Model Rule 8.3, also known as the “squeal rule,”[3] requires attorneys to “Maintain The Integrity of The Profession” by “inform[ing] the appropriate professional authority” upon becoming aware of another attorney’s violation of the “Model Rules of Professional Conduct” (hereinafter “Model Rules”).[4] However, the Model Rules do not provide causes of action pursuant to which associate attorneys can sue their employers.[5] So, ethical associates who have been terminated or forced to quit because of terrible working conditions after reporting a violation of the Model Rules must turn to traditional forms of redress under tort law, contract law, or statutory remedies.[6] Because some jurisdictions explicitly reject redress for these ethical associates, a broad, nation-encompassing push needs to occur to provide protection for the whistleblowing associate attorney, whether that be through pressure from the American Bar Association (hereinafter “ABA”) or decisions by each state’s highest court.

II. Background

While the ABA holds no governing authority over attorneys,[7] its committees write and publish the Model Rules.[8] Law students are tested on these rules every year,[9] and the highest courts in each state[10] use them to implement their own ethics codes by which lawyers are bound.[11] Although the ethics rules in the states are commonly modeled on the Model Rules, there are slight variations to each state’s ethical code.[12] Attorneys must be aware of these variations because all attorneys admitted to the state’s bar are subject to disciplinary action upon their violation.[13] Disciplinary action can include harsh punishments, such as disbarment or loss of license indefinitely or for a specific period of time, or lighter punishments, such as public and private reprimands.[14]

The Model Rules were enacted in 1980[15] and amended in 1983.[16] Until 1992, associate attorneys across the United States were provided no legal remedy for being terminated in retaliation to their whistleblowing.[17] The groundbreaking New York State case Wieder v. Skala[18] provided whistleblowing associate attorneys the requisite protection, causing other states to follow suit.[19] Howard Wieder noticed a fellow associate attorney forge company checks and failed to perform promised work for a client.[20] Mr. Wieder notified his superiors of the associate’s misconduct and asked them to report the associate’s misconduct to the state bar.[21] While the superiors initially refused, they eventually agreed because of Mr. Wieder’s persistence.[22] However, Mr. Wieder was fired a couple months later, shortly after filing motions in an important case for the firm.[23] Mr. Wieder sued his firm for wrongful discharge because the state ethics code required him to report the associate attorney’s misconduct.[24] The court agreed with Mr. Wieder and held that in any hiring of an attorney as an associate to practice law with a firm there is implied an understanding so fundamental to the relationship and essential to its purpose as to require no expression: that both the associate and the firm in conducting the practice will do so in accordance with the ethical standards of the profession.[25]

The court noted that although there was no contract, and even if there were contractual terms expressly negating the duty to report misconduct, the implied understanding to abide by New York’s version of the Model Rules was inherently essential to the relationship between the attorney and the firm.[26] The ABA should publicly support Wieder and other similar cases, whether that be through issuing public statements or updating its Model Rules to create a cause of action for employees who were terminated for following them.

III. Discussion

There are different paths for an employee to seek retribution for being retaliatorily terminated by her employer: contract, tort, and, occasionally, statute.[27] On a narrow level, individual associate attorneys can try to bargain for protections from retaliation for following the Model Rules when beginning employment with a firm. However, individual employees, especially young associate attorneys, generally have low bargaining power upon starting a new position at a firm.[28] Additionally, whistleblowing statutes cover attorneys working in the public sector.[29] While this is great, this leaves uncovered the thousands of attorneys working in private firms and companies.[30] Because of this, broader protections must be guaranteed to associate attorneys working in the private sector seeking to follow the Model Rules.

Because the Model Rules provide no cause of action, associate attorneys seeking redress must turn to the common law, where the odds are not in their favor.[31] Under the common law, employers are allowed to fire employees without contracts for any reason, or no reason at all, so long as the reason is not prohibited by law.[32] When an employee has a contract for a specific duration, the employer may not fire that employee without “good cause.”[33] However, it is rare for employees, even associate attorneys at law firms, to have contracts with a specified duration.[34] Because this has been met with public outrage, courts have limited the at-will employment doctrine with contract and tort theories, among which lies the public policy exception.[35] Public policy exceptions further a “policy affecting the public interest, which must be fundamental or substantial when the company discharges an employee.”[36]

While it takes all fifty states’ supreme courts to hold an attorney’s duty to uphold the Model Rules so fundamental to her relationship with her firm as to create a public policy exception to employment at will, it seems like the only way forward at this time. Unfortunately, the United States Supreme Court cannot issue a sweeping opinion to solve this issue because these are state-specific rules. The ABA can help by issuing a statement supporting holdings like the one in Wieder because, although it has no governing authority, it is very influential.[37] Fuller coverage, but perhaps a more wishful path forward, would be for the ABA to amend its Model Rules to provide for a cause of action for attorneys retaliated against for upholding the Model Rules. This would be highly persuasive; it would show that although the Model Rules provide no other causes of action, they do support a wrongful termination claim against private employers for retaliating against attorneys trying to uphold the Model Rules. It would also encourage state supreme courts to rethink whether public policy commands attorneys uphold the ethics of the profession.

IV. Conclusion

It is no secret that clients prefer trustworthy and ethical lawyers.[38] It is also no secret that the legal profession has a poor reputation.[39] Why, then, does the legal profession, which governs itself,[40] arguably promote unethical behavior? If an associate attorney knows the Model Rules compel him to report misconduct of other attorneys and also knows he has no protection against retaliation for reporting his coworkers’ or superiors’ misconduct, it is unlikely that the associate will be compelled to report others’ misconduct for fear of losing his job. This is wrong and contrary to public policy. Because of this, nationwide change must be implemented, either by state supreme court decision or pressure from the ABA.

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[1] See Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491 (Ill. 1998).

[2] See Joffe v. King & Spalding, 2018 U.S. Dist. LEXIS 96919 (S.D.N.Y. 2018); see also Gen. Dynamics Corp. v. Super. Ct., 876 P.2d 487 (Cal. 1994).

[3] See Wallace v. Skadden, Arps, Slate, Meagher & Flom, Nos. 96-CV-34 & 96-CV-739, 1998 D.C. App. LEXIS 9, 32 n. 19 (Jan. 15, 1998) (“Rule 8.3(a) of the Rules of Professional Conduct, sometimes colloquially known as the ‘squeal’ rule,” requires attorneys to report professional misconduct).

[4] Model Rules of Prof’l Responsibility r. 8.3(a) (Am. Bar Ass’n 1983).

[5] Model Rules of Prof’l Responsibility pmbl. § 20 (Am. Bar Ass’n 1983) (“Violation of a Rule should not itself give rise to a cause of action against a lawyer … 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.”).

[6] Terri Martin Kirik, Retaliatory Discharge for Attorney-Employees in Private Practice: To Do, or Not To Do, the “Right Thing,” 33 J. Marshall L. Rev. 383, 385 (2000).

[7] Lisa G. Lerman, Philip G. Schrag & Robert Rubinson, Ethical problems in the practice of law 73 (5th ed. 2020).

[8] Id.

[9] See Jurisdictions Requiring the MPRE, National Conference of Bar Examiners, https://www.ncbex.org/exams/mpre/ (last visited Mar. 9, 2021) (“The Multistate Professional Responsibility Examination (MPRE) … is required for admission to the bars of all but two US jurisdictions. … The purpose of the MPRE is to measure candidates’ knowledge and understanding of established standards related to the professional conduct of lawyers.”).

[10] Lerman, Schrag & Rubinson, supra note 7 at 69. Normally, highest state courts are called the “supreme court,” but there are some outliers, like New York and Maryland, that use “court of appeals.”

[11] Id. at 73.

[12] Id.

[13] Id. at 69.

[14] Id. at 86.

[15] See Model Code of Prof’l Responsibility (Am. Bar Ass’n 1980).

[16] See Model Rules of Prof’l Responsibility (Am. Bar Ass’n 1983).

[17] Lerman, Schrag & Rubinson, supra note 7 at 124.

[18] 593 N.Y.S.2d 752 (N.Y. 1992).

[19] See Joffe,2018 U.S. Dist. LEXIS 96919; see also Gen. Dynamics Corp.,876 P.2d 487.

[20] Wieder, 593 N.Y.S.2d at 753.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 755 (emphasis added).

[26] Id. at 756-57.

[27] See Kirik, supra note 6 at 385.

[28] See, e.g., Jan C. Leventer, Annual Survey of Michigan Law June 1, 1997 – May 31, 1998: Employment and Labor Law, Wayne L. Rev. 777,811(1999) (“The court’s recognition of the relatively low bargaining power of the employee is rare”).

[29] Kirik, supra note 6 at 390-91.

[30] Id. at 391.

[31] Id. at 384-85.

[32] Id. Prohibited reasons to fire someone include, for example, discriminatory reasons based on a person’s sex, race, color, national origin, or religion. See Title VII of The Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-5.

[33] Id. at 386.

[34] Id.

[35] Id. at 385.

[36] Green v. Ralee Eng’g Co., 960 P.2d 1046, 1050 (Cal. 1998) citing Foley v. Interactive Data Corp., 765 P.2d 373, 380 n.11 (Cal. 1988).

[37] Lerman, Schrag & Rubinson, supra note 7 at 73.

[38] See Casey Meraz, Hiring a Lawyer: What Potential Clients REALLY Care About, Juris Digital (Apr. 18, 2016), https://jurisdigital.com/what-consumers-are-looking-for-before-hiring-a-lawyer/ (when surveying legal clients to determine what traits and characteristics they look for in a lawyer, reputation, trust, ethics, and honesty were among the top responses).

[39] See Mia Russell, Why Is It That Lawyers Get Such A Bad Reputation?, ABA Law Info (Jun. 14, 2017), http://abalawinfo.org/lawyers-get-bad-reputation/ (describing factors that cause public opinion of lawyers to be negative, many of which can be boiled down to laymen not being able to trust lawyers).

[40] Douglas R. Richmond, Professional Responsibilities of Law Firm Associates, 45 Brandeis L.J. 199 (2007) (“[Law] is a self-regulating profession that vigorously enforces its ethics rules”).