[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

When lawyer employees initially sought court recognition of a wrongful discharge cause of
action, courts reasoned that the right of clients to fire lawyers at any time should trump any
contrary employment law doctrine. Wadler illustrates how courts over the past decade have
moved away from that notion and have begun to emphasize the similarity between lawyeremployees
and other employees protected by the wrongful discharge doctrine.
Wadler discusses Balla v. Gambro, 18 an early case that rejected any cause of action for
wrongful discharge by lawyer-employees, even where another professional employee, such
as an engineer, would be granted a cause of action if fired for making the same disclosure.
These courts reasoned that a lawyer who discovers that a client insists on pursuing illegal
activity must either convince the client to stop or leave the employment. Lawyers could
disclose if allowed or required by a rule of professional conduct, but could not disclose the
same client confidences to create a cause of action against their employer.
These decisions stressed the need for organizations to be able to trust their lawyers, the
need for confidentiality to foster that trust, and the social value of encouraging
organizations to seek legal advice. The decisions also recognized that a cause of action for
wrongful discharge might lead organizations to avoid sharing information about sensitive or
questionable activity with their legal staffs. This avoidance would in turn erase
opportunities for inside lawyers to counsel their clients about better means of complying
with legal requirements.
Wadler represents the opposite and emerging point of view: that conduct giving rise to
a cause of action by organizational employees also ought to extend to a cause of action for
wrongful discharge by lawyer-employees. 19 The law firm or corporation remains free to
discharge the lawyer, but might have to suffer a monetary penalty for punishing lawyers
who refuse to violate clear legal mandates, including those in their professional rules. This
view parallels the situation of other employee-whistleblowers, who are permitted to use
confidential information to prove that they had a good-faith belief that their employer was
engaged in wrongful activity.
One thing is certain. Competent lawyering requires any lawyer who disagrees with a
decision by management (whether corporate or law firm) first to determine the basis for the
disagreement. The lawyer who can articulate a clear public policy, embodied in a specific
statute, regulation, professional rule, or constitutional provision should communicate that
policy to responsible decision makers. If at that point the professional loses her job, she will
have created a record that her discharge was caused by her insistence that the organization
not violate the articulated public policy.
C. Finding New Employment Model Rules 1.1, 1.3, 1.4, 1.15, 1.16, 5.6, 7.1,
7.3, 7.4, 8.4(c) RLGL §§ 31, 32
Ethical Considerations in the Dissolution of a Law Firm or a Lawyer’s
Departure from a Law Firm
417